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Contract Number: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
BETWEEN
I-CO GLOBAL COMMUNICATIONS
(OPERATIONS) LIMITED
&
HUGHES SPACE AND COMMUNICATIONS
INTERNATIONAL, INC.
7 December 1995
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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TABLE OF CONTENTS
Article Title
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1 Definitions ........................................... 2
2 Scope of Work ......................................... 8
3 Launch Scheduling ..................................... 9
4 Contract Price, Payment and Adjustments ...............22
5 Manifest Management ...................................30
6 Reserved ..............................................31
7 Permits and Licenses: Government Approvals ............32
8 Launch Reviews ........................................34
9 Title .................................................35
10 Force Majeure .........................................36
11 Reserved ..............................................38
12 Access to Work in Progress and Data ...................39
13 Indemnification .......................................40
14 Warranty ..............................................42
15 Risk to Satellite .....................................43
16 US Government Third Party Indemnification .............44
17 Termination ...........................................45
18 Data Rights ...........................................53
19 Reserved ..............................................54
20 Rights in Inventions ..................................55
21 Confidentiality .......................................56
22 Interpretation ........................................59
23 Publicity .............................................61
24 Notices ...............................................62
25 Integration ...........................................64
26 Assignment ............................................65
27 Severability ..........................................67
28 Reserved ..............................................68
29 Reserved ..............................................69
30 Disputes and Arbitration ..............................70
31 Reserved ..............................................71
32 Replacement Launches ..................................72
33 Options ...............................................73
34 Limitation of Liability ...............................74
35 Miscellaneous .........................................75
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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THIS CONTRACT is effective as of the 7th Day of December, 1995,
BETWEEN:
I-CO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED, a company incorporated in the
Cayman Islands as an Exempted Company having its registered office at the
Huntlaw Building, P.O. Box 1359, Fort Street, Georgetown, Grand Cayman, Cayman
Islands (hereinafter referred to as "I-COGC"); and
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a company incorporated
under the laws of the State of Delaware, U.S.A., with a place of business in El
Segundo, California, (hereinafter referred to as "Hughes").
WHEREAS, I-COGC desires to procure Launch Services and Management Services in
support of the twelve (12) Satellites procured under a separate but interrelated
Satellite Contract dated 03 October 1995, No. ICOO/95-1002/NR; and
WHEREAS, Hughes desires to supply Launch Services and Management Services in
accordance with the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, and intending to be legally
bound hereby, the Parties hereto agree as follows:
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 1 DEFINITIONS
In this Contract, unless the context otherwise requires, .THE FOLLOWING TERNS
SHALL have the meaning stated hereunder
A "Affiliate" means, with respect to a Party, any subsidiary or holding
company (as determined by the Companies Act 1985 of Great Britain) at
any tier of such Party.
B "Associate" means any individuals or legal entities, organized under
public or private law, who shall, directly or indirectly, on behalf of
or at the direction of either Party to this Contract fulfill any of the
obligations undertaken by such Party in this Contract including, but
without limitation, the Affiliates, Subcontractors, Consultants,
employees, officers, directors or agents of each of them and of each of
the Parties. For the avoidance of doubt, Hughes in its role as a
satellite supplier under the Satellite Contract shall not be deemed an
Associate of I-COGC.
C "Business Day" means a Day on which I-COGC or Hughes is open for
business, excluding Saturdays, Sundays and public holidays.
D "Consultant(s)" means a person or organization identified to Hughes,
which person is retained by I-COGC to provide I-COGC with technical
advice and/or management services.
E "Contract" means this written instrument embodying the agreement between
Hughes and I-COGC, including the EXHIBITS annexed hereto and made a part
of this Contract, as may be varied in accordance with the provisions of
this Contract.
F "Contract Price" means the total amount expressed in this Contract
ARTICLE 4, CONTRACT PRICE, PAYMENT AND ADJUSTMENTS, as may be varied in
accordance with the provisions of this Contract.
G "Conversion" or "Convert" means for Delta-III and Zenit Launch Services,
the right which Hughes has to convert a Firm Launch (as defined in
EXHIBIT C or E) to an Optional Launch when a Firm Launch is postponed
more than six (6) months beyond the relevant Launch Semesters.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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H "Day" means a continuous 24-hour period commencing at 24:00 Midnight
(Greenwich Mean Time).
I "Designated Launch Site" means the launch facility provided, and used,
by the relevant Launch Service Provider.
J "Documentation" means documentation to be delivered under this Contract
as more fully described in EXHIBIT A, STATEMENT OF WORK.
K "Effective Date of Contract (EDC)" means the last date that this
Contract was duly signed by both Parties.
L "Government Agency" means any governmental body, agency or entity, which
has jurisdiction over this Contract, the Designated Launch Sites, the
Launch Vehicles or any other facet of the Launch Services or Management
Services provided herein.
M "I-COSL" means I-CO Services Limited. I-COSL has been appointed a
Consultant and has been given authority under an agreement with I-COGC
to manage this Contract on behalf of I-COGC. All notices, instructions
or consultations which are given or engaged in by I-COSL in the
performance of its management and consultancy functions in relation to
this Contract shall be deemed, pursuant to the aforesaid agreement, to
have been given by I-COGC and shall be binding on I-COGC.
Notwithstanding the foregoing, I-COSL is not authorized to vary the
terms of this Contract in any manner whatsoever unless and to the extent
that the I-COGC authorized representative referred to in ARTICLE 24,
NOTICES, advises Hughes in writing to the contrary.
N "Intentional Ignition" means the intentional ignition of any first stage
motor of the Launch Vehicle by the Launch Service Provider or, for Atlas
Launch Services, the point in time during the launch countdown when
initiation of the gas generator ignitors firing command and firing of
any of the gas generator ignitors occurs.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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O "Launch" means;
for Atlas Launch Services, the Intentional Ignition of the first stage
engines of the Launch Vehicle carrying the Satellite followed by either
release of the Launch Vehicle from the launcher holddown restraints or
Satellite and Launch Vehicle damage or destruction sufficient so that
both the Satellite and the Launch Vehicle are declared total losses; or
for Delta-III Launch Services, the Intentional Ignition of the first
stage solid rocket motors of the Delta III Launch Vehicle; or
for Proton Launch Services, the intentional ignition of the first stage
engines of a Launch Vehicle carrying a Satellite, followed by physical
separation of the Launch Vehicle from the ground support equipment,
unless such event constitutes a Terminated Ignition (as such term is
defined in EXHIBIT D); or
for Zenit Launch Services, the point in time when an electronic signal
is sent to command the opening of any first stage propellant valves. A
launch is deemed to have occurred even if there is a Total Failure,
Total Constructive Failure or Partial Failure of the Launch Vehicle (as
such terms are defined in EXHIBIT E);
P "Launch Date" means the single Day on which the relevant Launch
Service(s) shall be performed by the Launch Service Provider.
Q "Launch Period" means the three (3) Month period in which the relevant
Launch Service shall be performed by the Launch Service Provider. In the
case of Atlas Launch Services, the Launch Period shall be a five (5)
Month period.
R "Launch Revision Fees" means any amount payable by Hughes to a Launch
Service Provider as a consequence of the implementation, for any reason,
in accordance with the provisions of this Contract, of a Launch Service
Provider substitution or a Launch Service acceleration or postponement
for any Launch Service, which amount may include, but is not limited to,
termination liability values, postponement fees, liquidated damages,
and/or escalation values.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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S "Launch Service Fee" means as appropriate, the relevant fee for each
Launch Service, as defined in Table 2 or Table 4 of ARTICLE 4, CONTRACT
PRICE, PAYMENT AND ADJUSTMENTS.
T "Launch Service Cost" means the fee which Hughes pays to a Launch
Service Provider to provide/perform the relevant Launch Services.
U "Launch Service(s)" means, in relation to a Satellite, the services
provided by the Launch Service Provider to integrate and Launch such
Satellite under the relevant Launch Service Agreement, including
furnishing the Launch Vehicle, launch support, equipment and facilities,
as defined in EXHIBIT A, STATEMENT OF WORK, for the purpose of launching
a Satellite into the intermediate circular orbit defined in Exhibit B
(Satellite Technical Specification) of the Satellite Contract.
V "Launch Service Provider" means the organization(s) which Hughes has
contracted or will contract with to perform Launch Service(s), and shall
include, but not be limited to, those persons referred to in Table 1 of
ARTICLE 3, LAUNCH SCHEDULING.
W "Launch Service Agreement" means the contract(s) executed between Hughes
and the Launch Service Provider(s) for the provision of Launch
Service(s) in support of this Contract, which shall be either: i) an
existing Longterm Launch Service Agreement executed (or for the Zenit
Launch Vehicle to be executed) between Hughes and the Launch Service
Provider(s); or ii) a unique contract specifically negotiated by Hughes
in support of this Contract.
X "Launch Slot" means the thirty (30) Day period within the Launch Period
in which the relevant Launch Service(s) shall be performed by the Launch
Service Provider.
Y "Launch Vehicle" means, in relation to a Satellite, the Launch Vehicle
on which that Satellite is scheduled to be launched or is actually
launched.
Z "Longterm Launch Service Agreement" means the contract between Hughes
and certain Launch Service Provider(s) for the provision of multiple
Launch Services in support of any Hughes customer program(s).
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AA "Management Services" means those services provided by Hughes that are
required to effect the provision and scheduling of the Launch Service
for each Satellite with the relevant Launch Service Provider, as defined
in EXHIBIT A, STATEMENT OF WORK.
BB "Month" means a calendar Month.
CC "Net Present Value" means the value arrived at by discounting, on a
monthly basis, current and future amounts under this Contract to the
present date of calculation utilizing the Royal Bank of Scotland Base
Rate in existence on the date of calculation plus two percent (2%).
DD "Party" or "Parties" means an entity or all entities, according to the
context, which has or have signed this Contract.
EE "Satellite" means a Satellite to be provided to I-COGC pursuant to the
Satellite Contract. The term "Satellite" shall be interchangeable with
the term "Spacecraft" and has the same meaning.
FF "Satellite Contract" means Contract No. ICOO/95-1002/NR executed between
Hughes and I-COGC for the procurement of twelve (12) Hughes manufactured
Satellites for I-COGC.
GG "Statement of Work" means the Statement of Work which is incorporated
herein and made a part of this Contract and is EXHIBIT A to this
Contract.
HH "Subcontractors" means a person, firm, corporation, consultant or
business entity which has been awarded a subcontract by Hughes, to
provide a portion of the Work covered by this Contract.
II "Work" means all labor, services, acts (including tests to be
performed), items, materials, articles, data, documentation, equipment,
matters and things required to provide the Management Services and the
Launch Services.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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The following expressions defined in the Satellite Contract shall, when used in
this Contract, bear the same meanings therein, save where the context otherwise
requires:
A. "Delivery"
B. "Delivery Date"
C. "I-CO Program"
D. "Launch Attempt"
The Article and Paragraph headings are for convenience of reference only and
shall not be considered in interpreting this Contract. Where the context so
requires, words importing the masculine gender include the feminine and neuter
genders. The recitals of this Contract are descriptive only and shall not create
or affect obligations of the Parties.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 2 SCOPE OF WORK
2.1 In accordance with the terms and conditions of this Contract, Hughes
shall procure Launch Services and provide Management Services in support
of the Launch and deployment of the twelve (12) Satellites procured by
I-COGC under the Satellite Contract. Hughes shall furnish and perform
the Launch Services and Management Services in accordance with the
provisions of this Contract and shall perform the Work to the extent and
in the manner specified in the following documents, which are attached
hereto and made a part of this Contract:
DOCUMENT DATE
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EXHIBIT A - STATEMENT OF WORK 7 December 1995
EXHIBIT B - I-COGC RIGHTS AND REMEDIES FOR ATLAS 7 December 1995
LAUNCH SERVICES
EXHIBIT C - I-COGC RIGHTS AND REMEDIES FOR DELTA-III 7 December 1995
LAUNCH SERVICES
EXHIBIT D - I-COGC RIGHTS AND REMEDIES FOR PROTON 7 December 1995
LAUNCH SERVICES
EXHIBIT E - I-COGC RIGHTS AND REMEDIES FOR ZENIT 7 December 1995
LAUNCH SERVICES
EXHIBIT F - MILESTONE PAYMENT PLAN 7 December 1995
EXHIBIT G - I-COGC GUARANTEE 7 December 1995
EXHIBIT H - HUGHES GUARANTEE 7 December 1995
EXHIBIT I - TERMINATION LIABILITY CALCULATION 7 December 1995
2.2 In the event of any inconsistency among or between the parts of this
Contract, such inconsistency shall be resolved by giving precedence in
the order of the parts as set forth below:
A. Contract Articles and EXHIBIT I
B. EXHIBITS B through E
C. EXHIBIT A
D. EXHIBIT F
E. EXHIBITS G and H
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No. ICOO/95-1003/YW
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ARTICLE 3 LAUNCH SCHEDULING
3.1 LAUNCH MANIFEST. In accordance with the provisions of this Contract, Hughes
shall utilize the Launch Service Provider(s) and Launch Dates specified in
Table 1 below in establishing the baseline Launch Services manifest (set
out as Table 1 below) on behalf of I-COGC:
TABLE 1: BASELINE LAUNCH SERVICES MANIFEST
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LAUNCH LAUNCH SERVICE PROVIDER LAUNCH LTA(3) LAUNCH TARGET
VEHICLE LAUNCH # PERIOD LAUNCH DATE(S)
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1 Martin Marietta Atlas-IIA *
Commercial Launch Services(1)
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2 Lockheed-Krunichev-Energia Proton *
International(1)
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3 Martin Marietta Atlas-IIA *
Commercial Launch Services(1)
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4 McDonnell Douglas Corporation(1) Delta-III *
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5 Lockheed-Krunichev-Energia Proton *
International(1)
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6 Sea Launch Limited Partnership(2) Zenit *
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7 McDonnell Douglas Corporation(1) Delta-III *
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8 Lockheed-Krunichev-Energia Proton *
International(1)
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9 Sea Launch Limited Partnership(2) Zenit *
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10 McDonnell Douglas Corporation(1) Delta-III *
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11 Sea Launch Limited Partnership(2) Zenit *
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12 McDonnell Douglas Corporation(1) Delta-III *
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1: Indicated Launch Services are provided through a Longterm Launch Service Agreement between
Hughes and the relevant Launch Service Provider(s).
2: Indicated Launch Services are initially scheduled on a Zenit Launch Vehicle, supplied by the
Sea Launch Limited Partnership, subject to Article 3.2 herein.
3: The referenced Launch Number ("Launch #") indicates what type of Launch Service (i.e. Firm or
Option) and which Launch Service or Launch Semester (i.e. Number 5 of 10 purchased by Hughes)
shall be provided by Hughes to I-COGC.
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* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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The procedures between Hughes and the Launch Service Providers for determining a
Launch Period, Slot or Day are as set out in Exhibits B through E as applicable
(or as may be set out in any unique Launch Service Agreement). Hughes' selection
of Launch Slots or Launch Days shall be made in the best interest of the I-CO
Program and shall be submitted to I-COGC for approval (which shall not be
unreasonably withheld) no later than one Month prior to the finalization date of
said selection with the appropriate Launch Service Provider. If any alternate
Launch Slot or Day is counter-proposed by a Launch Service Provider in
accordance with Exhibits B through E as applicable then Hughes' response or
acceptance shall similarly require I-COGC's approval. If I-COGC disapproves said
selection, it shall notify Hughes no later than ten (10) Business Days following
notification by Hughes of the selection in order to allow time for resolution of
the disagreement between the Parties.
3.1.1 References. References to "Launch 1" in this Contract shall be
references to the Launch numbered 1 as set out in Column 1 of Table 1
and the same references shall apply for Launches 2 through 12.
3.1.2 Prior to 05 July 1996 and without prejudice to any other rights of
I-COGC under this Contract, I-COGC shall have the right to:
(a) postpone any or all Launch Periods in Table 1 above by up to six
(6) months; and
(b) rearrange the order in which the Launch Vehicles referred to in
Table 1 above are allocated to a Launch.
Such rights shall, however, be subject to:
(a) the scheduling constraints set forth in Article 3.3.3; and
(b) no Zenit Launch Service being scheduled prior to 01 November
1999.
The exercise of such rights prior to 05 July 1996 shall have no effect
on the Contract or the Contract Price except for (i) any adjustments to
EXHIBIT F.
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MILESTONE PAYMENT PLAN, and (ii) any Launch Service Fee adjustments as
referenced in Table 4 of ARTICLE 4, PRICE, PAYMENTS AND ADJUSTMENTS,
nor shall the exercise of such rights reduce any postponement rights or
periods granted to Hughes or I-COGC under this Contract or any Launch
Service Agreement.
3.2 Launch Service Provider Changes. Prior to Launch, I-COGC may direct and
Hughes may propose a Launch Service Provider substitution as follows:
3.2.1 I-COGC Launch Service Provider Substitutions Prior To Or On 05
July 1996 Prior to or on 05 July 1996 and subject to ARTICLE 4,
CONTRACT PRICE, PAYMENT AND ADJUSTMENTS, I-COGC shall be
entitled to direct Hughes by written notice ("Substitution
Notice") to substitute any Launch Service Provider(s) from those
specified in Table 1 ("Original LSP") with a new Launch Service
Provider ("New LSP") solely for the purposes of maximizing
reliability, schedule confidence and/or scheduling flexibility.
Such request by I-COGC shall be based upon the schedule,
technical or reliability performance of the Launch Service
Provider. Any substitution shall be implemented as follows:
i) The Substitution Notice shall be served on Hughes prior to or
on 05 July 1996; and
ii) In the event that I-COGC directs Hughes to utilize a Launch
Service Provider which does not provide Launch Services via a
Longterm Launch Service Agreement (i.e. a unique Launch Service
Agreement) Hughes shall use all reasonable efforts to fully
negotiate a unique Launch Service Agreement in support of this
Contract, which Launch Service Agreement shall be reviewed and
approved by I-COGC prior to execution by Hughes. Hughes shall
not be required to effect any substitution until I-COGC has
approved the final draft of the unique Launch Service Agreement
and such agreement has been validly executed by all parties
thereto; and
iii) The Substitution Notice shall specify the New LSP, which
shall be a person listed in Exhibit B (Satellite Technical
Specification) of the Satellite Contract
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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and shall identify the Original LSP and Launch number for which
the substitution is to be effected; and
iv) Any such substitution shall only be effected in accordance
with ARTICLE 3.3.3; and
v) Hughes shall bear any and all Launch Revision Fees arising as
a result of effecting such substitution; and
vi) Subject to paragraph "iv)" above, Hughes shall effect the
substitution of the Original LSP for the New LSP as soon as
reasonably possible following receipt by Hughes of the
Substitution Notice.
3.2.2 I-COGC Launch Service Provider Substitutions After 05 July
1996. After 05 July 1996 and subject to ARTICLE 4, CONTRACT
PRICE, PAYMENT AND ADJUSTMENTS, I-COGC shall be entitled to
direct Hughes by Substitution Notice to substitute any Original
LSP with a New LSP for any reason. Any Substitution shall be
implemented as follows:
i) The Substitution Notice shall be served on Hughes after
05 July 1996 and prior to Launch; and
ii) In the event that I-COGC directs Hughes to utilize a
Launch Service Provider which does not provide Launch
Services via a Longterm Launch Service Agreement (i.e. a
unique Launch Service Agreement) Hughes shall use all
reasonable efforts to fully negotiate a unique Launch
Service Agreement in support of this Contract, which
Launch Service Agreement shall be reviewed and approved
by I-COGC prior to execution by Hughes. Hughes shall not
be required to effect any substitution until I-COGC has
approved the final draft of the unique Launch Service
Agreement and such agreement has been validly executed
by all parties thereto; and
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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iii) The Substitution Notice shall specify the New LSP,
which shall be a person listed in Exhibit B (Satellite
Technical Specification) of the Satellite Contract and
shall identify the Original LSP and Launch number for
which the substitution is to be effected; and
iv) Any such substitution shall only be effected in
accordance with ARTICLE 3.3.3; and
v) I-COGC shall bear any and all Launch Revision Fees
arising as a result of effecting such substitution; and
vi) Subject to paragraph "iv)" above, Hughes shall effect
the substitution of the Original LSP for the New LSP as
soon as reasonably possible following receipt by Hughes
of the Substitution Notice.
3.2.3 I-COGC Launch Service Provider Changes Due to Zenit Launch
Services Launch Services scheduled to be provided by Sea Launch
Limited Partnership ("Sea Launch") for Launch on a Zenit Launch
Vehicle (without prejudice to I-COGC's right to substitute
Launch Service Providers in accordance with ARTICLE 3.2.1 and
3.2.2 above) are scheduled subject to the following conditions
("Conditions");
a) No Launch Service herein shall occur on the first or
second launch of the Zenit Launch Vehicle by Sea Launch;
and
b) Hughes having entered into a Longterm Launch Service
Agreement by 05 June 1996 with Sea Launch which Hughes
determines supports this Contract, the latest draft of
which forms the basis of EXHIBIT E, I-COGC RIGHTS AND
REMEDIES FOR ZENIT LAUNCH SERVICES. Hughes shall notify
I-COGC of such determination within thirty (30) Days of
entering into such Launch Services Agreement; and
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c) Sea Launch having successfully completed all development
and integration activities required to validate the Sea
Launch system and having performed at least one (1)
successful launch six (6) months prior to the Launch
Semester for the relevant Zenit Launch Service for
I-COGC; and
d) For Launch 6, the first launch of a Zenit Launch Vehicle
by Sea Launch being scheduled by 01 November 1997 to
occur prior to or on 31 December 1998; and
e) For Launches 9 and 11, the first launch of a Zenit
Launch Vehicle by Sea Launch has not occurred by 01
April 1998 and is not scheduled by 01 April 1998 to
occur prior to or on 30 June 1999.
In relation to each of Launches 6, 9 and 11, in the event that
any of the conditions are not satisfied by the dates set out
above, I-COGC shall be entitled to serve a Substitution Notice
in accordance with ARTICLE 3.2.1 above (which ARTICLE shall
apply hereto mutatis mutandis) for the relevant Launch:
3.2.4 Hughes Launch Service Provider Substitutions. In the performance
of its Management Services, Hughes may propose to I-COGC a
substitution to a Launch Service Provider. Any proposal by
Hughes shall, as a minimum, identify the relevant Launch
Service(s), explain the rationale for substituting the Launch
Service Provider(s), identify the proposed Launch Service
Provider, and quantify the price and payment schedule impact.
Upon receipt of such proposal, I-COGC shall notify Hughes
whether the submitted Launch Service Provider substitution
proposal is accepted or rejected. Such notice period shall be
thirty (30) Days or such shorter period of time as required
under the circumstances, Hughes having used its reasonable
endeavors to maximize the length of that shorter period. If
I-COGC elects to accept such proposal, the provisions of ARTICLE
4, CONTRACT PRICE, PAYMENT, AND ADJUSTMENTS, shall apply and
I-COGC shall be solely responsible for any Launch Revision Fees
and other fees and costs charged by the Launch
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Service Provider and specified in the accepted proposal. At no
point in time may Hughes substitute a Launch Service Provider
without the express written consent of I-COGC.
3.2.5 Payments. If any substitution in ARTICLES 3.2.1, 3.2.2, 3.2.3 or
3.2.4 above results in I-COGC having paid more under EXHIBIT F,
MILESTONE PAYMENT PLAN, than it would otherwise have paid had
that substitution not occurred, at I-COGCs written direction,
Hughes shall either (i) reimburse any excess amount to I-COGC in
accordance with ARTICLE 4.8 within (a) fifteen (15) Days or (b)
within five (5) Business Days from receipt of the applicable
amount from the Launch Service Provider, whichever is later, or
(ii) retain such amount and credit the amount against subsequent
milestone payments specified in EXHIBIT F, MILESTONE PAYMENT
PLAN, in sequence until such amount has been fully credited
against such milestone payments.
3.3 Launch Schedule Adjustments. Either Party may, at any time prior to
Launch, request to accelerate or postpone any Launch Period specified in
Table 1, or the relevant Launch Slot or Launch Date, as applicable, as
provided below:
3.3.1 Any request or proposal to accelerate or postpone any Launch
Service by either Party under this Paragraph 3.3.1 shall be
submitted and negotiated in accordance with ARTICLE 22.3, and be
subject to the relevant rights and obligations specified in this
Contract and EXHIBITS B through E, as applicable, and the
scheduling constraints specified in ARTICLE 3.3.3 below. I-COGC
shall be solely responsible for any Launch Revision Fees
associated with any Launch Service acceleration or postponement
requested by either Party except for those Launch Revision Fees
which are based solely on the late Delivery by Hughes of the
relevant Satellite or other associated deliverables (under the
interrelated Satellite Contract) beyond their respective
Delivery Dates (where the Delivery delay is solely caused by
Hughes) or due to a material breach by Hughes of this Contract,
in which case, Hughes shall be solely responsible for any
applicable Launch Revision Fees. For the avoidance of doubt, if
a situation should arise where Launch Revision Fees are due and
payable to a Launch Service Provider for, e.g., a five (5) Month
postponement, and three (3) Months of the postponement
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were due solely to the late Delivery by Hughes of the relevant
Satellite, Hughes would be solely liable for the amount
associated with the three (3) Month postponement and I-COGC
would be solely liable for the amount associated with the
remaining two (2) Months.
3.3.2 Notwithstanding the foregoing, Hughes shall not be liable for
any Launch Revision Fees if:
i) I-COGC has requested, either before or after a Launch
Services postponement by Hughes, a postponement for the relevant
Launch Service under ARTICLE 3.3.1 above for reasons other than
the late Delivery by Hughes of the relevant Satellite or other
associated deliverables beyond their respective Delivery Dates
where that delay is solely caused by Hughes or due to a material
breach by Hughes of this Contract; and
ii) any Launch Services postponement requested by Hughes is less
than or equal to the maximum period of time allowable in the
relevant Launch Service Agreement prior to the imposition of any
type of Launch Revision Fees.
As an example and for illustrative purposes only, if the Launch
Service Provider allows a maximum of twelve (12) Months
postponement prior to the imposition of any Launch Revision
Fee(s) and I-COGC utilizes three (3) Months of such postponement
period (either before or after a Hughes postponement request),
then Hughes shall not be liable for the Launch Revision Fees if
Hughes requests any postponement less than or equal to twelve
(12) Months.
3.3.3 Scheduling Constraints. Notwithstanding the foregoing provisions
of this Contract, no Launch Service Provider substitution(s)
and/or Launch Service accelerations or postponements shall be
effected unless they shall be effected within and in accordance
with the following scheduling constraints:
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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a) EXHIBITS B through E, as applicable; and
b) I-COGC may not utilize more than six (6) Launch Services
under any single Longterm Launch Service Agreement
without the prior written agreement of Hughes, which
agreement shall not be unreasonably withheld; and
c) Any constraints imposed by a Government Agency on the
provision of Launch Services by a Launch Service
Provider.
On a case by case basis, Hughes agrees to use its reasonable
efforts in attempting to improve scheduling flexibility by
negotiating with the relevant Launch Service Provider(s) to
minimize the effect or existence of the constraints specified
above.
3.3.4 Hughes Mitigation. If I-COGC directs (or otherwise requires)
Hughes to pursue a course of action or to utilize the services
of a specific Launch Service Provider, in circumstances where
Hughes would be liable for Launch Revision Fees or for a Launch
Service Fee, when Hughes may otherwise be able to implement an
alternate course of action or procure/schedule alternate Launch
Services which meet the requirements of this Contract at a
lesser amount of Launch Revision Fees or a lower Launch Service
Fee, and where such alternative course of action or Launch
Services are supportive of the overall schedule and other
requirements of this Contract, then I-COGC shall solely bear any
difference between (i) the course of action or Launch Service
Provider selection required by I-COGC and (ii) the amount of
Launch Revision Fees and/or the Launch Service Fee associated
with the Hughes alternate course of action or Launch Service
Provider selection. The Parties agree to consult with one
another in order to minimize such costs, subject to I-COGC's
schedule and other requirements as specified in this Contract.
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3.4 Launch Service Provider Postponements. If a Launch Service Provider
notifies Hughes that any Launch Service shall be postponed, Hughes shall
immediately notify I-COGC of such postponement in accordance with
ARTICLE 24, NOTICES. Hughes shall ascertain the nature and extent of the
postponement and consult with I-COGC to determine and implement a course
of action with the purpose of mitigating any schedule or cost impacts
resultant from the relevant Launch Services postponement. In the event
that the course of action dictated by I-COGC when implemented results in
any Launch Revision Fees, I-COGC shall be solely responsible for the
payment of such Launch Revision Fees.
3.5 Liquidated Damages.
3.5.1 For those Launch Service Providers defined in the Table below,
I-COGC may elect, no later than 05 July 1996, to impose on
Hughes the requirement to pay liquidated damages for the
postponement of any Launch Service provided by the Launch
Service Provider. Such election by I-COGC shall be submitted to
Hughes in writing and shall be at no additional cost to I-COGC.
Upon election and notification by I-COGC, Hughes shall develop
and submit to I-COGC a liquidated damages schedule (the "LD
Schedule") which shall be consistent with the I-COGC
requirement but based upon the amounts and constraints defined
in the table below and define the liquidated damages date, grace
period (if applicable), and daily liquidated damages amount.
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- ------------------------------------------------------------------------------------------------
LAUNCH
SERVICE
PROVIDER LIQUIDATED DAMAGES VALUES CONSTRAINTS
- ------------------------------------------------------------------------------------------------
Delta III Liquidated Damages for Delta-III Launch Liquidated damages shall not apply to
Services shall be: the first * days of Delta-III
postponement. Liquidated Damages do
Calendar Day 1-30: * per day not apply to (i) Delta-III delays caused
Calendar Day 31-60: * per day by force majeure events as defined in
Calendar Day 61 or >: * per day EXHIBIT C, or (ii) the provision of
replacement launches by Delta-III or
The cumulative maximum liquidated (iii) any delay(s) to the applicable
damages per Launch Service shall not Launch Service(s) caused due to a
exceed US$5 Million. postponement by Hughes or I-COGC.
- ------------------------------------------------------------------------------------------------
Proton Liquidated Damages for Proton Launch Liquidated damages shall not apply
Services shall be US$ * per day. to the first * days of Proton
postponement. Liquidated damages
The cumulative maximum liquidated shall not apply to any delay(s) to
damages per Launch Service shall not the applicable Launch Service(s)
exceed * of the relevant Launch caused due to a postponement by
Service Cost. Hughes or I-COGC.
- ------------------------------------------------------------------------------------------------
Zenit Liquidated Damages for Zenit Launch Liquidated damages shall not apply to the
Services shall be US * per day. first * days of Sea Launch
postponement. Liquidated damages shall
Liquidated damages for Zenit Launch not apply to i) any Sea Launch
Services shall not exceed * of postponement based upon an event of force
the applicable Launch Service Cost. majeure, as defined in EXHIBIT E; ii) any
postponement required due to Sea Launch's
obligation to provide a replacement
launch for any Sea Launch customer; and
iii) any delay(s) to the applicable
Launch Service(s) caused due to a
postponement by Hughes or I-COGC.
- ------------------------------------------------------------------------------------------------
* Confidential Treatment Requested and the Redacted Material
has been separately filed with the Commission.
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3.5.2. Other Launch Service Providers. For any Launch Service(s)
provided by a Launch Service Provider(s) other than those
defined in Paragraph 3.5.1 above, upon receipt of a written
request from I-COGC, Hughes agrees to enter into good faith
negotiations with the applicable Launch Service Provider(s) to
attempt to include liquidated damages into the relevant Launch
Service Agreement. Such notification from I-COGC must be
submitted to Hughes (i) no later than 05 July 1996, or (ii)
prior to definitization of the unique Launch Service Agreement,
whichever is later. I-COGC shall be solely liable for any
increase in any Launch Service Cost resulting from the inclusion
of any liquidated damages into the relevant Launch Service
Agreement.
3.5.3 Payment. Payment by Hughes to I-COGC of any liquidated damages
value shall occur within five (5) business days after Hughes
receives the corresponding liquidated damages payment from the
relevant Launch Service Provider on which Hughes shall have
imposed the same level of liquidated damages provided that
Hughes shall never be under any obligation to I-COGC to effect
payment of any liquidated damages for an amount greater than
that received from the relevant Launch Service Provider.
3.5.4 I-COGC Postponement Fees. If I-COGC implements the liquidated
damages defined in Paragraph 3.5.1 for any Delta-III or Zenit
Launch Service, I-COGC shall be subject to postponement fees for
any Launch Service postponement requested or directed by I-COGC.
I-COGC postponement fees shall be:
23
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LAUNCH
SERVICE
PROVIDER I-COGC POSTPONEMENT FEE VALUES CONSTRAINTS
- --------- ----------------------------------------- --------------------------------
Delta-III I-COGC Postponement Fees for Delta-III Liquidated damages shall not
Launch Services shall be: apply to the first * days
of I-COGC postponement.
Calendar Day 1-30: * per day
Calendar Day 31-60: * per day
Calendar Day 61 or >: * per day
The cumulative maximum liquidated damages
per Launch Service shall not exceed
US$5 Million.
Zenit I-COGC Postponement Fees for Zenit Launch Liquidated damages shall not
Services shall be US * per day. apply to the first * days
of I-COGC postponement.
Liquidated damages for Zenit Launch
Services shall not exceed * of the
applicable Launch Service Cost.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 4 CONTRACT PRICE, PAYMENT AND ADJUSTMENTS
4.1 Contract Price. In consideration for i) the Launch Services referred to
in Table 1, and ii) the Management Services specified herein, (subject
to ARTICLE 4.2) the Contract Price is a firm fixed price of Nine Hundred
Twenty Five Million U.S. Dollars (US$ 925,000,000.00), which includes
all taxes and duties and fees required by Hughes to provide the
Management Services and Launch Services. I-COGC shall pay the Contract
Price to Hughes in accordance with Table 3 below, which reflects the
payment profiles for each of the relevant Launch Service Provider(s) and
is presented in EXHIBIT F, MILESTONE PAYMENT SCHEDULE. The baseline
Contract Price shall be apportioned as follows:
TABLE 2 - BASELINE CONTRACT PRICE
UNIT PRICE LINE ITEM TOTAL
ITEM DESCRIPTION (US DOLLARS) (US DOLLARS)
- ---- ----------- -------------- ----------------
1 LAUNCH SERVICE FEE:
1(a) (2) Atlas II-A Launch Services * *
1(b) (4) Delta-III Launch Services * *
1(c) (3) Proton Launch Services * *
1(d) (3) Zenit Launch Services * *
2 MANAGEMENT SERVICES FEE * *
Total Contract Price $925,000,000.00
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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TABLE 3 - BASELINE PAYMENT SCHEDULE
ATLAS DELTA-III PROTON ZENIT
----- --------- ------ -----
05 JULY 96 * * * *
L-27(1) *
L-24 *
L-21 *
L-18 * * * *
L-15 * * *
L-12 * * * *
L-9 * * * *
L-6 * * *
L-3 *
L-1 * * * *
L+30 DAYS * * * *
- --------------------------------------------------------------------------------
Notes:
1: "L"= the first Day of the Launch Period, Launch Slot, or Launch Date,
whichever is applicable as of the date of the milestone payment.
2: L-24 and Launch Period selection
3: L-12 and Launch Slot selection
4: L-6 and Launch Date selection
5: L-15 and PDR complete
- --------------------------------------------------------------------------------
4.2 Launch Service Provider Substitutions. The Contract Price stated in
ARTICLE 4.1 above assumes that the Launch Services(s) shall be performed
by the Launch Service Provider(s) specified in Table 1 of ARTICLE 3.1
herein. If any Launch Service Provider is substituted in accordance with
ARTICLE 3.2 herein, the Contract Price and the Baseline Payment Schedule
stated in ARTICLE 4.1 above shall be revised to take into account the
relevant Launch Service Fee and payment schedule defined in Table 4 and
Table 5 below as they shall apply for the substituted Launch Services:
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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TABLE 4 - LAUNCH SERVICE PROVIDER SUBSTITUTIONS
LAUNCH LAUNCH SERVICE FEE
VEHICLE ($USD)
- ------- -------------------
Atlas-IIA * per Month for every Month that the relevant Launch Service is
scheduled to occur beyond 01 November 1998. Pricing is valid for
Launch Services exercised prior to 01 January 1997, unless the Atlas
Launch Service Provider agrees to extend such date.
Proton * increased at an annual rate of * for any Launch beyond 01
July 2000. Pricing is valid for Launch Services provided through 31
December 2001.
Delta-III * increased at an annual rate of * for any Launch exercised
after 01 January 2002. Such escalation shall be applied for the
period beginning on 01 January 2002 and ending on the Launch
exercise date. Pricing is valid for Launch Services provided through
31 December 2005.
Zenit * for each Month that the first Day of the Launch Period is
after 01 July 2000. Pricing is valid for Launch Services provided
through 31 December 2005.
Note: Escalation calculations defined within this Table 4 for the Proton,
Delta-III and Zenit Launch Vehicles shall not apply to any Launch which
is scheduled at the date of Substitution to occur on those Launch
Vehicles prior to 31 December 2000. In the event that any Launch is
scheduled at the date of Substitution to occur on or after 01 January
2001, the escalation calculations/amounts defined above shall apply as
specified above.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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TABLE 5 - SUBSTITUTION PAYMENT SCHEDULES
ATLAS DELTA-III PROTON ZENIT
------------------------------------------------------------------
OPTION 5% US$1 million 2%
EXERCISE (2)
- -------------------------------------------------------------------------------------------
L-24(1) *
L-21 *
L-18 * * * *
*
L-15 * * *
L-12 * * * *
L-9 * * * *
L-6 * * *
L-3 *
L-1 * * *
L+30 DAYS * * * *
- --------------------------------------------------------------------------------------------
Notes:
1: "L" = the first Day of the Launch Period, Launch Slot, or Launch Date,
whichever is applicable as of the date of the milestone payment.
2: Option Exercise = upon direction to Hughes by I-COGC to substitute a
Launch Service Provider and notification to the Launch Service Provider
of Option Exercise.
3: L-24 and Launch Period selection
4: L-12 and Launch Slot selection
5: L-6 and Launch Date selection
6: L-15 and PDR complete
4.3 ILS Launch Service Fee Reduction. If Hughes is able to negotiate and
obtain a reduced Launch Service Cost (in absolute value or on a New
Present Value basis) after the Effective Date of this Contract from
(and for the Launch Service(s) relating to) the Atlas and/or Proton
Launch Service Provider, then the Contract Price shall be reduced by
an amount equal to * of the net difference between the initial
Launch Service Cost to Hughes and the subsequent lower Launch Service
Cost negotiated by Hughes multiplied by one (1) plus the General and
Administrative fee of one percent (i.e. 1.01). The Contract Price
reduction shall only apply to those Launch Services which are the
subject of any such agreement with the Atlas and/or Proton Launch
Service Provider. The Contract Price reduction value may be
illustrated in formula format as follows:
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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----------------------------------------------------------------------------
Net Contract Price Reduction *
----------------------------------------------------------------------------
If I-COGC should question any amount calculated under this Paragraph
4.3, subject to the execution of a non-disclosure agreement in a form
reasonably acceptable to Hughes between all relevant parties, Hughes
shall provide access to a third party auditor acceptable to both
Parties, which third party auditor may review the relevant cost
documentation and certify to I-COGC as to the validity of the Hughes
reduction.
4.4 Alternate Launch Service Provider(s). If, at any time, I-COGC directs
Hughes to utilize a Launch Service Provider which does not have a
Longterm Launch Service Agreement with Hughes which provides Launch
Services for a Satellite as of the date of the I-COGC request, the
Contract Price stated in ARTICLE 4.1 above shall be revised to reflect
the inclusion of i) the actual Launch Service Cost, inclusive of any
applicable taxes, duties, or fees charged by the alternate Launch
Service Provider; and ii) a fee equal to * of the Launch Service
Cost. In addition, the payment schedule specified in EXHIBIT F,
MILESTONE PAYMENT PLAN, shall be revised to reflect the
milestone/payment schedule included in the relevant Launch Service
Agreement. The * fee specified above shall be payable on a per
Launch Service basis as follows: i) * shall be prorated over all of
the applicable payments; and ii) * shall be payable upon Launch.
4.5 Payments. All payments specified in this ARTICLE 4, CONTRACT PRICE,
PAYMENT AND ADJUSTMENTS, shall be made by I-COGC within fifteen (15)
Days of receipt of a valid invoice and (i) for calendar based
milestones, the occurrence of the applicable milestone, or (ii) for
performance milestones, additionally upon certification from Hughes that
the particular milestone event has been completed, whichever is later.
With respect to any other amounts payable under the Contract, the Party
entitled to payment shall make a written demand for, or shall submit an
invoice if so requested by the payor, after such entitlement becomes
established,
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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and the payor shall make payment within fifteen (15) Days after receipt
of a valid written demand or valid invoice unless the Contract specifies
to the contrary. Notwithstanding any other term in this Contract, in no
event shall Hughes be liable to I-COGC for any payment which originates
from a Launch Service Provider (e.g. Launch Revision Fees, liquidated
damages, or refund of payments for a terminated Launch Service) until
Hughes has received the corresponding payment from the relevant Launch
Service Provider.
Any invoices will separately identify any applicable taxes and duties
and shall be addressed to I-COGC at the following address:
I-CO Global Communications (Operations) Limited
Huntlaw Building
P.O. Box 1350
Fort Street
Georgetown, Grand Cayman
Cayman Islands
but submitted both via an internationally recognized air courier and via
telefax to:
I-CO Services Limited
1 Queen Caroline Street
Hammersmith, London W6 9BN
United Kingdom
Attention: Contract Administrator (Space Segment)
Fax #44-181-600-1199
and with a copy given by hand to an authorized on-site representative of
I-COGC at the Hughes' facility.
4.6 Payment Postponements. If any postponement of a Launch Service results
in the postponement or delay of any payment(s) under a Launch Service
Agreement for the postponed Launch Service, the payment schedule
specified in EXHIBIT F, MILESTONE PAYMENT PLAN, shall be revised to
reflect such delayed payment(s).
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4.7 Payment Dispute. No dispute with respect to the payment of any amount
under this Contract shall relieve the disputing Party of its obligation
to pay all other amounts due and owing under this Contract. All disputed
amounts, unless otherwise specified in the Contract, shall be paid into
an interest-bearing escrow account at Bank of America, Concord,
California, Account No. (to be established later), within fifteen (15)
Days after receipt of invoice. After the dispute is settled, the Party
entitled to the amount or part thereof in escrow shall receive such
amount together with all interest thereon and the costs and fees
associated with such escrow account shall be paid by each Party in
inverse proportion to the amounts received by each Party.
4.8 Telegraphic Transfer. Amounts payable hereunder are to be remitted by
telegraphic transfer to a bank to be advised in writing by Hughes or
I-COGC, as the case may be.
4.9 Guarantee. Within 15 Days of EDC, both Parties shall provide a parent
company guarantee of their obligations substantially in the form set
forth in EXHIBIT H, HUGHES GUARANTEE, and EXHIBIT G, I-COGC GUARANTEE.
4.10 Letter of Credit. No later than 05 July 1996, I-COGC shall establish an
irrevocable Letter of Credit in the amount of * . Such irrevocable
Letter of Credit shall be issued by a bank of good international
reputation of I-COGC's choice (issuing bank) and in a format reasonably
acceptable to Hughes. The irrevocable Letter of Credit shall be issued
in favor of Hughes and shall be valid until the last payment has been
made as per EXHIBIT F, MILESTONE PAYMENT PLAN as such plan may be varied
in accordance with the provisions of this Contract. The aforesaid Letter
of Credit amount shall be adjusted to reflect the values listed below by
the dates specified:
Date Revised Letter of Credit Amount
---- -------------------------------
15 Sept 1997
15 Mar 1998
15 June 1998 *
15 July 1998
15 March 1999
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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15 Dec 1999 *
15 July 2000 *
I-COGC shall notify Hughes within five (5) Days of any adjustments to
the amount of the Letter of Credit.
In the event I-COGC has not made a payment for a milestone within
fifteen (15) Days after the receipt of Hughes' invoice and milestone
completion certification when pursuant to ARTICLE 4.5 it was obligated
to do so, the irrevocable Letter of Credit shall allow Hughes to
immediately draw down an amount which Hughes certifies as the
outstanding amount payable for that milestone.
I-COGC will be responsible for all bank charges, expenses, and
commissions relating to the irrevocable Letter of Credit required to be
issued hereunder on Hughes' behalf save as may be incurred as a result
of a delay in the last milestone payment beyond 01 January 2001 caused
by a late Delivery by Hughes of the relevant Satellite or the associated
deliverables beyond their respective Delivery Dates (where that delay is
solely caused by Hughes) or due to a material breach by Hughes of this
Agreement in which case such bank charges (etc ...) shall be borne by
Hughes.
Hughes shall notify I-COGC in writing if any Launch Service Provider
substitution or Launch Service(s) postponement (as specified in ARTICLE
3, LAUNCH SCHEDULING) necessitates a revision in the adjustment dates
and/or values (increase/decrease or acceleration/postponement) defined
above. I-COGC shall revise the Letter of Credit as required within
thirty (30) days of receipt of such written notice, or such later period
as may be agreed between the Parties as reasonable under the
circumstances. The Parties agree to regularly (at least once every six
(6) Months) review the level of the Letter of Credit with a view to
adjusting the Letter of Credit to cover the forecasted payment values.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 5 MANIFEST MANAGEMENT
5.1 Launch Service Provider Cessation. If any Launch Service Provider
utilized hereunder declares that it shall, or does, cease operations for
a period equal to or greater than six (6) Months or it is anticipated
that it will do so ("LSP Cessation"), Hughes will promptly confer with
I-COGC to determine the feasibility of utilizing alternate launch
opportunities (i.e. postponing or accelerating currently scheduled
Launch Services) within the I-COGC launch services manifest (specified
in Table 1 of ARTICLE 3, LAUNCH SCHEDULING, as adjusted by ARTICLE 3,
LAUNCH SCHEDULING) and/or transferring any portion of the current Launch
Services to alternate Launch Service Providers.
5.2 Revised Launch Opportunities. If after such review of the proposed/
possible options presented by Hughes, I-COGC requests Hughes to pursue
revised launch opportunity(ies), then Hughes shall attempt to create an
equitable rescheduling amongst its satellite customers, giving priority
based upon the launch manifests in existence as of the date of the LSP
Cessation but taking into consideration limitations or technical
compatibility with multiple launch vehicles of other Hughes' satellite
customers similarly affected. In any event, I-COGC shall be responsible
for (i) any Launch Revision Fees and(ii) any amounts specified in
ARTICLE 4, CONTRACT PRICE, PAYMENT AND ADJUSTMENTS, associated with any
rescheduling performed under this ARTICLE 5.
5.3 Rescheduling Rights. Hughes may however, reschedule the affected I-COGC
Launch Service to a position other than that reflected in the launch
manifests in existence as of the date of the LSP Cessation to provide
another Hughes satellite customer(s) an earlier Launch than the affected
I-COGC Launch provided that such rescheduling does not cause a
significant delay (not to exceed three (3) months) to I-COGC relative to
the other Hughes satellite customer(s) being provided such earlier
Launch Service(s). In addition; the price (when evaluated on a Net
Present Value basis) of such later launch opportunity to I-COGC shall
not be greater than that of I-COGC's original launch opportunity.
33
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 6 RESERVED
34
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ARTICLE 7 PERMITS AND LICENSES: GOVERNMENT APPROVALS
7.1 Hughes Permits. Licenses and Approvals Hughes shall, at its own expense,
secure all Government permits, licenses, approvals and consents as may
be required for the performance of the Management Services under this
Contract. Hughes shall also secure, via the relevant Launch Service
Provider, all Government permits, licenses, approvals and consents
required for the provision of each relevant Launch Service(s). Hughes
shall perform the Work in accordance with the conditions of all such
relevant permits and licenses.
7.2 Technical Data. Notwithstanding ARTICLE 7.1 or any other provision of
this Contract, the Parties understand and agree that certain
restrictions are placed on access to Hughes' plant and the use of
technical data delivered under this Contract with relation to the
approvals Hughes and certain Launch Service Providers must obtain from
the U.S. Government. As a result, the Parties agree that such access and
the actual delivery of any technical data will be under a separate
agreement which shall require prior U.S. Government approval. Hughes via
the Launch Service Provider, as applicable, shall prepare said agreement
and, in consultation with I-COGC, shall request U.S. Government
approval. Request for U.S. Government approvals shall be sufficiently
comprehensive to allow Hughes or the relevant Launch Service Provider to
fulfill all of its obligations hereunder including but not limited to
the rights of access and inspection granted to I-COGC and its
Consultants under this Contract.
7.3 Documentation. If Documentation furnished under this Contract is
authorized by the U. S. Government for export only to I-COGC, the
Documentation may not be resold, diverted, transferred, trans-shipped or
otherwise be disposed of in any other country, either in its original
form or after being incorporated through an intermediate process into
other end items without the prior written approval of the U.S.
Government. Additionally, transferring registration or control to any
other person or business entity of the Documentation furnished under
this Contract is considered an export and as such also requires prior
written approval from the U.S. Government. I-COGC represents and
warrants that the ultimate end use of the Documentation is to support
the provision of telecommunications services.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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7.4 I-COGC Permits and Licenses. I-COGC shall, at its own expense, secure
all Government permits and licenses as may be required for the
performance of its obligations under this contract. I-COGC shall be
responsible for obtaining the registration of any and all Satellites
launched hereunder. In addition, I-COGC shall be responsible for
obtaining any license required for radio telecommunication with any and
all Satellites after separation from the Launch Vehicle.
7.5 Survivability. The obligations contained in this ARTICLE 7 shall survive
expiration or termination of this Contract for whatever cause.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 8 LAUNCH REVIEWS
8.1 Launch Reviews. Hughes shall ensure that I-COGC is afforded the
opportunity to attend programmatic reviews held by the various Launch
Service Provider(s). Such reviews shall include but not be limited to,
preliminary design reviews, critical design reviews, orbital mission
reviews, and launch readiness reviews. Hughes shall provide I-COGC
representatives with fifteen (15) Business Days notice of the pending
review. Attendance at these reviews by I-COGC representatives is not
mandatory and in no event shall the absence of an I-COGC representative
postpone or delay any review.
8.2 I-COGC Direction. Based upon the information presented by the Launch
Service Provider in the applicable programmatic review(s), I-COGC may
direct Hughes to halt or postpone the Launch Service to which such
review applied or related if I-COGC believes that the Launch Service
Provider has failed, or shall fail, in some material degree to provide
the required Launch Services. If I-COGC directs Hughes to halt or
postpone any Launch Service(s), I-COGC shall, by notice in writing to
Hughes provide reasonable details of the Launch Service(s) affected, the
rationale for postponement and a proposed/acceptable resolution for the
issue. I-COGC shall be solely responsible for, and indemnify and hold
harmless Hughes from any Launch Revision Fees or other amounts charged
by the Launch Service Provider for any Launch Service halted or
postponed by Hughes at I-COGC's direction in accordance with this
ARTICLE 8.2.
37
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 9 TITLE
9.1 Launch Services. In no event shall either Party take or receive title to
any portion of any Launch Vehicle utilized in the Launch Services
procured by this Contract.
9.2 Documentation. Title and risk of loss to all Documentation shall pass to
I-COGC at the time of delivery, save that intellectual property rights
in Documentation shall be dealt with in accordance with the provisions
of ARTICLE 18, DATA RIGHTS.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No: ICOO/95-1003/YW
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ARTICLE 10 FORCE MAJEURE
10.1 Effect of Force Majeure. Notwithstanding any other provisions of this
Contract, in the event Hughes and its Associates or Subcontractors
("affected Party") are delayed in the performance of this Contract by an
event of Force Majeure, as defined in ARTICLES 10.2, 10.3, and 10.5
below, there shall be an equitable adjustment to the time for the
performance of the affected obligations under this Contract provided
that Hughes informs I-COGC immediately of the occurrence of the event
giving rise to Force Majeure and provides I-COGC within seven (7)
Business Days of the date of such notice with a detailed description of
the performance affected by such event as well as the plans for
minimizing the effects of such event upon the performance of Hughes's
obligations under the Contract. In all cases, Hughes shall use
reasonable efforts to avoid or minimize such delay.
10.2 Management Services. For purposes of this Contract, "Force Majeure" for
Management Services shall mean an act of God, or of the public enemy,
fire, flood, epidemic, quarantine restriction, or lockout, strike,
walkout, (other than those solely affecting Hughes' or its Associates'
workforce) or freight embargo, acts of Government, including but not
limited to the Government of the United States, (including the refusal,
suspension, withdrawal, or non-renewal of export or import licenses
essential to the performance of the Contract not caused by Hughes or its
Associates) whether in its sovereign or contractual capacity, or any
other event which is beyond the reasonable control and without the fault
or negligence of Hughes and its Associates performing any part of the
Work.
10.3 Launch Services. For purposes of this Contract, "Force Majeure" for
Launch Service Provider(s) shall mean those force majeure or excusable
delay events and the consequences thereof defined in EXHIBITS B through
E, as applicable.
10.4 I-COGC Payments. Notwithstanding the above, this ARTICLE is not
applicable to the payment obligations of I-COGC and as such no force
majeure events or excusable delays shall be provided in that instance.
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10.5 Satellite Contract Force Majeure. For the avoidance of doubt, in the
event that any Launch Service is delayed due to the late Delivery of a
Satellite or any associated deliverables, and such late Delivery is
caused by an Excusable Delay (as defined in Article 10 of the Satellite
Contract), then such delay of the Launch Service(s) shall constitute an
event of Force Majeure under this Contract.
40
Acceptance Test Plan Exhibit D
Contract Number: ICOO/95-1002/NR
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4.4.9 RETURN PAYLOAD PANEL
Test Level
--------------------------------------------------
Subsystem
--------------------------------------------------
Test Integration Ambient Thermal Vacuum Post Ambient Test Description
- ------------------- ----------- ------- -------------- ------------ -----------------------------------------------------------
Harness Continuity X Verify electrical harness pin to pin continuity. Verify
Isolation.
Power and Grounding X Verify DC power applied to correct pins of all units.
Verify unit grounding, panel power consumption, and harness
power return lines.
T&C Functionals X X X X Verify that units respond to command signals. Verify
telemetry signals.
C-Band Gain Transfer X Prior to mating the return upconverter, the C-band gain
transfer characteristics are measured. Measure output
power. Each polarization will be tested.
C-Band P Prior to mating the return upconverter, the C-band
Spurs/Harmonics subsection output is examined for spurs and harmonics. Each
polarization will be tested.
C-band Swept Gain X Prior to mating the upconverter, the C-Band subsection
Response amplitude response is measured. Each polarization will be
tested.
C-band Two-tone X Prior to integrating the digital processor, the two tone
linearity linearity response is measured from the upconverters
through the C-Band output. Each polarization will be
tested.
In-Band Spurious P Prior to integrating the digital processor, the
spurious/harmonic response is measured from the
upconverters through the C-Band output. Each polarization
will be tested.
Panel Gain/Routing/ X X X For each processor IF input(4) the gain from IF input to
Channelization element outputs(127) will be measured for a defined set of
routed channel configurations which exercise all hardware
paths.
PAGE 4-28
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ARTICLE 11 RESERVED
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ARTICLE 12 ACCESS TO WORK IN PROGRESS AND DATA
12.1 Hughes Facilities. For those facilities solely owned and/or operated by
Hughes, Hughes shall provide I-COGC and its Consultant(s) reasonable
access to all Work being performed under this Contract, at reasonable
times as mutually agreed upon by the Parties during the period of this
Contract, provided that such access does not unreasonably interfere with
such Work and access to Work is coordinated with the Hughes Program
Manager or designated alternative(s). Such access shall be in compliance
with Hughes' security requirements and United States law. Hughes may, at
its reasonable discretion, deny access to persons who are employed by or
affiliated with a company manufacturing satellites or major subsystems
for satellites or providing launch services.
12.2 Disclosure. I-COGC and/or its Consultant(s) visiting Hughes facilities
(a) will abide by Hughes' security regulations and applicable U.S.
Government regulations; (b) will not use or disclose to a third party
any information received in connection with the access provided
hereunder and will use such information only in the performance of this
Contract, whether or not such information is marked or otherwise
identified as proprietary, save as provided in ARTICLE 21,
CONFIDENTIALITY.
12.3 I-COSL For purposes of access, I-COSL shall be considered the same as
I-COGC and the provisions of this ARTICLE 12 shall apply mutatis
mutandis to I-COSL and its Consultants.
12.4 Launch Service Provider Facilities. Notwithstanding the foregoing
provisions of this ARTICLE 12, access by I-COGC and/or its Consultant(s)
to any Launch Service Provider facility, including the Designated Launch
Site, shall be governed by the terms defined in EXHIBITS B through E, as
applicable.
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ARTICLE 13 INDEMNIFICATION
13.1 Each Party ("the Indemnifying Party") shall indemnify and hold harmless
the other Party ("the Indemnified Party") and its Associates (or any of
them), from any loss, damage, liability or expense suffered or incurred
by any such person resulting from damage to all property and injury,
including death, arising out of, or based upon, any event or
circumstance occurring prior to arrival at the Designated Launch Site to
the extent caused by a negligent act or omission of the Indemnifying
Party or its Associates in the performance of the Work and at the
Indemnifying Party's expense shall defend any suits or other proceedings
brought against the Indemnified Party and/or its Associates (or any of
them), on account thereof, and satisfy all judgments which may be
incurred by or rendered against them (or any of them) in connection
therewith.
13.2 Notwithstanding ARTICLE 13.1, each Party ("the Indemnifying Party")
shall be and remain solely responsible for, and shall indemnify and hold
harmless the other Party ("the Indemnified Party") from and against any
loss, damage, liability or expense suffered or incurred by the
Indemnifying Party resulting from loss or damage to the Indemnifying
Party's property and/or injury including death, affecting the
Indemnifying Party's personnel whilst on or within the Indemnifying
Party's premises or on or within the premises of the Indemnified Party;
provided however that the first One Hundred Thousand U.S. Dollars (US
$100,000) of any such loss, damage, liability or expense shall be borne
by each Party to the extent that it is liable under ARTICLE 13.1.
13.3 Prior to the time that either Party or its Associates enter the
Designated Launch Site (as a precondition of such entry), each Party
shall ensure that they and their respective relevant Associates shall
sign a no-fault, no-subrogation inter-party waiver of liability
consistent with that defined in the relevant Launch Service Agreement.
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13.4 In the event that either I-COGC or Hughes fails to obtain the aforesaid
inter-party waiver of liability from their respective Associates, then
I-COGC and Hughes shall indemnify and hold each other harmless from
claims brought by the other Party or its Associates, for damage to any
such persons' property or injury to, or death of, such persons'
employees in connection with any launch operations in or around the
Designated Launch Site.
13.5 Notwithstanding any other provision of this Contract, but without
prejudice to any indemnities or insurance coverage as may be provided by
Launch Service Providers, I-COGC shall indemnify and hold harmless
Hughes and its Associates from any liabilities, losses and damages,
including but not limited to those based on negligence, including any
costs, expenses and damages whatsoever incurred by Hughes in defending,
or assisting I-COGC in its defense, against any and all third party
claims, including but not limited to, I-COGC's customer(s) or an agency
of any Government with whom I-COGC shall have any obligation related to
the Satellites arising after the launch attempt of a Satellite, and
I-COGC shall obtain waivers of subrogation rights against Hughes and its
Associates from I-COGC's insurers, if any.
This indemnity shall not apply to Hughes or its Associates to the extent
that they make a claim against I-COGC as a direct or indirect customer
of I-COGC.
13.6 I-COGC shall defend and indemnify Hughes from any claims made by any
third party against Hughes arising from any misrepresentation by I-COGC
or any of its Affiliates to any third party in connection with the
Launch Services and Management Services.
13.7 Neither Party shall be entitled to claim to be, nor shall it be,
indemnified both under this Contract and under ARTICLE 13 of the
Satellite Contract in respect of any loss, costs, claims, damages or
expenses arising out of or in relation to the same event or
circumstance.
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ARTICLE 14 WARRANTY
14.1 Launch Services. Hughes provides no warranty, either express or implied,
in relation to any Launch Service provided herein, save as provided in
this ARTICLE 14.
14.2 Management Services. Hughes warrants, in relation to the Management
Services, that all services shall be performed in a professional and
workmanlike manner consistent with generally accepted custom and
practice in the industry.
14.3 Longterm Launch Service Agreements. Hughes warrants and I-COGC has
entered into this Contract on the basis that the provisions of this
Contract including EXHIBITS B through E and EXHIBIT I are reflected by
binding and enforceable rights and remedies under the Longterm Launch
Service Agreements which Hughes has entered into (or in the case of
Zenit, which Hughes intends to enter into) with the relevant Launch
Service Providers. Hughes further warrants that insofar as any
provisions of this Contract (other than those contained in EXHIBITS B
through E) are not reflected by or are in conflict with the rights and
remedies granted to I-COGC under EXHIBITS B through E and EXHIBIT I that
Hughes has now or will obtain any rights and remedies viz-a-viz the
Launch Service Provider(s) as are necessary to fulfill the provisions of
this Contract. In addition, Hughes shall not enter into any modification
or amendment to any Longterm Launch Service Agreement which modifies
I-COGC's rights as specified in this Contract including EXHIBITS B
through E and EXHIBIT I without the prior written approval of I-COGC,
which approval shall not be unreasonably withheld.
14.4 Pursuit of Rights and Remedies. Hughes warrants that it shall utilize
its reasonable efforts to initiate and pursue all rights and remedies
specified in this Contract or EXHIBITS B through E, as applicable,
including recovery or enforcement by legal or arbitral proceedings or
utilization of any existing corporate guarantee or other financial
guarantee or security.
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ARTICLE 15 RISK TO SATELLITE
15.1 Risk. The Parties are aware and agree that the use of expendable launch
vehicles to launch satellites into orbit involves a degree of risk to
the relevant satellite. By this Contract, the Parties have made a
deliberate, knowing allocation between them of that risk and I-COGC
shall solely bear the risk of loss for any Satellite launched hereunder.
15.2 Right to Destroy. The relevant Range Safety Officer or equivalent Launch
Service Provider personnel shall be authorized to destroy, without
liability or indemnity to the Launch Service Provider or Hughes, the
relevant Launch Vehicle and Satellite if such action is mandated.
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ARTICLE 16 U.S. GOVERNMENT THIRD PARTY INDEMNIFICATION
In the event that I-COGC, at its sole discretion, is not reasonably satisfied
that the U.S. Government third party indemnification coverage identified in the
Commercial Space Launch Act is afforded to I-COGC, and consequently I-COGC
elects to procure insurance in lieu of such U.S. Government third party
indemnification coverage, Hughes agrees to reimburse for * of I-COGC's
direct documented cost of such insurance not to exceed the value of Hughes'
Management Services Fee identified in ARTICLE 4.1.
Notwithstanding the above, in the event that:
1) The Commercial Space Launch Act is clarified such that I-COGC is
reasonably satisfied that it is included in such U.S. Government third
party indemnification coverage; or
2) The Commercial Space Launch Act expires or is modified such that U.S.
Government third party indemnification coverage is no longer available
to launch vehicle customers;
then Hughes shall have no obligation to reimburse I-COGC for any costs procure,
or share in the procurement of any insurance deemed necessary by I-COGC.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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ARTICLE 17 TERMINATION
17.1 I-COGC Termination. I-COGC may terminate any unperformed portion of this
Contract as specified below.
17.1.1 I-COGC Termination For Convenience. At any point in time prior to
Launch, I-COGC may direct Hughes, in writing, to terminate any Launch
Service(s) provided herein for I-COGC's convenience. As of the date
specified (the "Effective Termination Date") in the written notice of
termination from I-COGC, Hughes shall take the following actions:
1) stop the provision of Management Services under this Contract on
the Effective Termination Date and to the extent specified in
the notice of termination; and
2) terminate the appropriate Launch Service(s) on the Effective
Termination Date; and
3) settle all outstanding liabilities and all claims arising out of
such termination in accordance with the provisions of this
ARTICLE 17, TERMINATION.
17.1.1.1 Termination Liability Prior To Or On 05 July 1996. For
each Launch Service terminated by I-COGC in accordance with
Paragraph 17.1.1 above prior to or on 05 July 1996, I-COGC shall
be liable to Hughes for:
(a) for each Launch Service provided via a Longterm Launch
Service Agreement, an amount of * per terminated Launch
Service; or
(b) for each Launch Service not provided via a Longterm Launch
Service Agreement, an amount resultant from the relevant formula
in CALCULATION 2, as defined in EXHIBIT I, TERMINATION LIABILITY
CALCULATION.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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17.1.1.2 Termination Liability After 05 July 1996. For each
Launch Service terminated by I-COGC in accordance with Paragraph
17.1.1 above, after 05 July 1996, I-COGC shall be liable to
Hughes for an amount resultant from the relevant formula in
CALCULATION 2, as defined in EXHIBIT I, TERMINATION LIABILITY
CALCULATION.
17.1.2 I-COGC Termination For Hughes Default. Provided that I-COGC is
not in default of any term of this Contract, I-COGC may terminate, prior
to Launch, any Launch Service in the event any of the following events
occur:
1) Hughes breaches a material term of (i) this Contract; or (ii)
the Satellite Contract; or (iii) a Launch Service Agreement and
such breach of a material term by Hughes results in any Launch
Service(s) provided herein being terminated for default by the
relevant Launch Service Provider; or
2) Hughes shall (A) commence a voluntary case under the US
Bankruptcy Code (as now or hereafter in effect) (the "Code"); or
(B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of
debts; or (C) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an
involuntary case under the Code or other laws or such a case
shall not have been dismissed or stayed within thirty (30) days
of the filing of the petition commencing the same; or (D) apply
for, or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, liquidator or the
like of itself or of a substantial part of its assets, domestic
or foreign; or (E) admit in writing its inability to pay, or
generally not be paying its debts (other than those that are the
subject of a bona fide dispute) as they become due; or (F) make
a general assignment for the benefit of creditors; or (G) Hughes
or the Hughes Parent Company sells, transfers or otherwise
disposes of all or substantially all of its assets (other than
for full consideration) and as a result the Parent Company
Guarantee provided by Hughes is prejudiced and adequate
security, in a form reasonably acceptable to I-COGC, is not
additionally provided; or (H) take any action for the purpose
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of effecting any of the foregoing; or (I) a case or other
proceeding shall be commenced against Hughes in any court of
competent jurisdiction seeking (i) relief under the Code or
under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or adjustment
of debts; or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of Hughes or of all or any
substantial part of its assets, domestic or foreign and such
case or proceeding shall continue undismissed or unstayed for a
period of thirty (30) days, or an order granting the relief
request in such case or proceeding (including, but not limited
to, an order for relief under the Code) shall be entered; or
3) If the interrelated Satellite Contract is terminated by I-COGC
solely due to a default by Hughes under the Satellite Contract.
17.1.2.1 For each Launch Service(s) terminated by I-COGC in
accordance with Paragraph 17.1.2 above, I-COGC shall be liable
to Hughes for an amount resultant from the formula in
CALCULATION 1, as defined in EXHIBIT I, TERMINATION LIABILITY
CALCULATION.
17.1.3. I-COGC Termination For Launch Service Provider Default. I-COGC
shall, at its sole discretion, have the right to direct Hughes to
terminate any Launch Service (which termination shall be effected by
Hughes by either (i) terminating the relevant Launch Services or (ii)
the Conversion of a Firm Launch to a Hughes Optional Launch) prior to
Launch, if the Launch Service Provider is in material default of the
terms and conditions of the relevant Launch Service Agreement, as
specified in this Contract including EXHIBITS B through E.
Upon the termination or Conversion of the Launch Service by Hughes on
behalf of I-COGC, the following shall occur:
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17.1.3.1 Termination Settlement. I-COGC shall be entitled to
receive a termination settlement consisting of (i) in the event
of a conversion, a refund of all payments submitted against the
Launch Service Fee for the terminated Launch Service; and (ii)
in the event of a Launch Service termination, (a) a refund of
all payments submitted against the Launch Service Fee for the
terminated Launch Service, and (b) reimbursement for direct
damages or Launch Vehicle reprocurement fees as defined in the
Table below. In addition to the above, Hughes shall retain a
share of the Management Services fee, as such share is
calculated in CALCULATION 2 of EXHIBIT I, TERMINATION LIABILITY
CALCULATION.
LAUNCH
SERVICE
PROVIDER DIRECT DAMAGE OR REPROCUREMENT FEE VALUE
Delta-III For a terminated Delta-III Launch Service, Hughes
shall reimburse I-COGC for direct damages related
to the terminated Launch Service not to exceed *
. I-COGC shall submit an invoice to Hughes which
includes a summary of the applicable direct
damages within twenty (20) days of determining the
same.
Proton In the event of an "anticipatory repudiation" by
the Proton Launch Service Provider of its
obligations under the Launch Service Agreement,
Hughes shall provide to I-COGC either (i)
equivalent Launch Services via an alternate Launch
Vehicle, taking into account the launch manifest
of such an alternative Launch Service Provider, or
(ii) * per affected Launch, whichever the
Proton Launch Service Provider elects to provide.
Zenit For a terminated Zenit Launch Service, Hughes
shall pay to I-COGC a reprocurement fee of *
for each terminated Launch Service.
* Confidential Treatment Requested and the Redacted Material has
been separately filed with the Commission.
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17.1.3.2 Hughes Liability. Notwithstanding any other Article or
term in this Contract, in the event that Hughes elects to
Convert a Firm Launch Service to an Optional Launch Service (as
defined in EXHIBIT C and E) for utilization on another Hughes
program when I-COGC has the right to terminate a Launch Service
Provider for default as specified in ARTICLE 13 of EXHIBIT C,
I-COGC RIGHTS AND REMEDIES FOR DELTA-III LAUNCH SERVICES or
ARTICLE 14 of EXHIBIT E, I-COGC RIGHTS AND REMEDIES FOR ZENIT
LAUNCH SERVICES, Hughes shall be liable to I-COGC for the
amounts specified above regardless of receipt of any payment
from the relevant Launch Service Provider.
17.1.3.3 Hughes Default. Notwithstanding any other provision of
this Contract, in no event shall any breach or default by any
Launch Service Provider be considered to be a breach or default
of this Contract by Hughes.
17.2. Hughes Termination for I-COGC Default Provided that Hughes is not in
default of any terms of this Contract, Hughes may terminate, prior to
Launch, any Launch Service(s) provided in this Contract for default upon
written notice to I-COGC at any time after the occurrence of any of the
following:
1) Failure of I-COGC to make any payment validly due to Hughes
hereunder when due, provided such failure is not cured within a
period of thirty (30) calendar Days following receipt of written
notice thereof from Hughes.
2) Failure of I-COGC to maintain the irrevocable Letter of Credit
in the amount specified in ARTICLE 4, CONTRACT PRICE, PAYMENT
AND ADJUSTMENTS, provided such failure is not cured within a
period of five (5) Business Days following receipt of written
notice thereof from Hughes.
3) I-COGC passes a resolution for winding-up or a petition is
presented for I-COGC's winding-up (unless such resolution or
petition for winding up is pursuant to a scheme of corporate
reconstruction or amalgamation and there is no adverse effect on
the payment obligations to Hughes hereunder) and, unless
granted, is not dismissed within thirty (30) Days from
presentation; or
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I-COGC becomes unable to pay its debts as they become due; or a
receiver is appointed over all or a substantial part of I-COGC's
assets and the appointment is not discharged within thirty (30)
Days; or I-COGC or I-COGC's Parent Company sells, transfers, or
otherwise disposes of all or the greater part of its assets
(other than for full consideration) and as a result the Parent
Company Guarantee provided by I-COGC is prejudiced and adequate
security in a form reasonably acceptable to Hughes is not
additionally provided.
4) If the interrelated Satellite Contract is terminated for any
other reason than a default by Hughes under the Satellite
Contract.
5) If any Launch Service provided under this Contract is terminated
by the Launch Service Provider for default due to: (i) a failure
of payment by I-COGC under this Contract; or (ii) a Launch
Service postponement requested or caused by I-COGC, or (iii) the
breach by I-COGC of a material term of this Contract which, as a
direct result, is the sole cause of a Launch Service termination
by the relevant Launch Service Provider against Hughes provided
always that the right of termination under this ARTICLE 17.2
shall only apply to the Launch Service so affected.
17.2.1 For each Launch Service(s) terminated by Hughes in accordance
with Paragraph 17.2 above, I-COGC shall be liable to Hughes for the
amount resultant from the relevant formula in CALCULATION 2, as defined
in EXHIBIT I, TERMINATION LIABILITY CALCULATION.
17.2.2 The rights and remedies provided to Hughes in this Paragraph 17.2
shall be exclusive and in lieu of any other rights and remedies provided
by law or in equity.
17.3 Termination Liability Mitigation. Without prejudice to the Delta-III
Termination Liability Mitigation as specified in EXHIBIT I, TERMINATION
LIABILITY CALCULATION, for any Launch Service terminated after 05 July
1996, Hughes shall utilize its reasonable efforts to mitigate any
resultant termination liability which I-COGC is liable for by utilizing
the rights granted by the relevant Launch Service Agreement or such
other rights or remedies negotiated with the Launch Service
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Provider, if any. Hughes shall attempt to mitigate the applicable
termination liability for a period of eighteen (18) Months after the
relevant termination event or the time period granted by the relevant
Launch Service Agreement, whichever is less. The mitigation
responsibility shall not require Hughes to incur or pay any Launch
Revision Fees or any other charge whatsoever.
In furtherance of the above, Hughes as its sole obligation shall
contact, with I-COGC if requested, any Hughes Customer which may be able
to utilize the terminated Launch Service(s) for the purposes of
determining if the Hughes Customer has any interest in assuming or
acquiring the terminated Launch Service. I-COGC shall have the right to
review and accept or reject, prior to definitization, any proposed
business transaction between Hughes, the Launch Service Provider and the
relevant Hughes Customer. Upon receipt from Hughes, I-COGC shall provide
acceptance or rejection of any proposed business transaction within
fourteen (14) calendar Days.
In addition, Hughes shall use its reasonable efforts to negotiate the
assignment, or novation, of the rights and benefits for any outstanding
Launch Service to I-COGC if this Contract is terminated due to a default
by Hughes under the Satellite Contract or this Contract. Any transfer,
assignment, or novation of a Launch Service to I-COGC shall be subject
to the terms of the relevant Launch Service Agreement and approval of
the relevant Launch Service Provider. I-COGC shall have the right to
review and accept or reject, prior to definitization, any proposed
assignment, or novation.
I-COGC agrees that any bona fide offer delivered by Hughes to I-COGC for
review shall be deemed to constitute the exercise of reasonable efforts.
Upon execution of the applicable business transaction, Hughes shall
reimburse to I-COGC the termination liability mitigation value within
five (5) Business Days from receipt of such value from the respective
Launch Service Provider or Hughes Customer, as appropriate.
17.4 Maximum Termination Liability. In no event shall I-COGC be liable to
Hughes under this ARTICLE 17 for any termination liability value greater
than the Contract Price.
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Any termination payment due to Hughes from I-COGC shall give credit for
any amounts paid by I-COGC in respect of the terminated Launch
Services).
17.5 Management Services Termination. For the purposes of this ARTICLE 17,
any termination of a Launch Services shall include the termination of
the associated Management Services and the cost of such termination of
the associated Management Services is included within the amounts
derived from CALCULATIONS 1 and 2 of EXHIBIT I, TERMINATION LIABILITY
CALCULATION.
17.5 Remedies. In the event that the terminated Launch Service Provider fails
to provide any termination settlement payment to Hughes, as specified in
this ARTICLE 17, Hughes shall utilize its reasonable efforts to initiate
and pursue all remedies specified in this Contract including EXHIBITS B
through E, as applicable, including recovery by legal or arbitral
proceedings or the utilization of any existing corporate guarantee or
other financial guarantee or security. In no event shall Hughes be
liable to I-COGC for any Launch Service Provider termination settlement
payment or remedy until Hughes has received such termination settlement
payment or remedy from the Launch Service Provider. Failure of Hughes to
receive or obtain any termination settlement or remedy from the relevant
Launch Service Provider shall not be considered a breach or default of
this Contract by Hughes.
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ARTICLE 18 DATA RIGHTS
Neither Party nor any Launch Service Provider shall obtain rights or ownership
to any intellectual property utilized and/or provided by the other Party under
this Contract or by any Launch Service Provider.
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ARTICLE 19 RESERVED
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ARTICLE 20 RIGHTS IN INVENTION
Neither Party shall obtain any rights to any invention developed or utilized by
the other Party or its Associates in the performance of this Contract.
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ARTICLE 21 CONFIDENTIALITY
21.1 The Parties may provide or exchange proprietary information during the
performance of the Work, in oral or written form, which may include
specifications, drawings, sketches, models, samples, computer programs,
reports, data, techniques, designs, codes, documentation, and financial,
statistical or other technical information essential to the objectives
of this Contract. All disclosures of such information will be treated as
proprietary if marked as "Proprietary" by the Party making the
disclosure at the time of disclosure.
21.2 Subject to the provisions of ARTICLE 21.3 below, the Party receiving
the proprietary information of the other Party shall maintain such
information in confidence and shall not use such information except as
expressly authorized by this Contract. Each Party agrees to use the same
care and discretion to avoid unauthorized disclosure, publication or
dissemination of the other Party's proprietary information and the
unauthorized use thereof as the receiving Party uses with respect to
similar information of its own, but in no event, less than reasonable
care. Should it become legally necessary for either Party to disclose
certain of the other Party's proprietary information to a third party,
it shall be disclosed only to the extent required by law and after a
five (5) Days prior written notification to the other Party of the
requirement for disclosure.
21.3 The obligations of confidentiality and restrictions on use specified in
this ARTICLE shall not apply to any information that:
A. is already in the possession of the receiving Party without
obligation of confidentiality at the time of disclosure;
B. is independently developed by the receiving Party or any of its
Affiliates or subcontractors prior to disclosure as evidenced by
appropriate documents;
C. is or becomes publicly available without breach of this Contract
and without the fault of the receiving Party;
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D. is lawfully and rightfully received by the receiving Party from
a third party; or
E. is released for public disclosure by the disclosing Party.
Specific information shall not be deemed to be available to the public
or in possession of the receiving Party merely because it is embraced by
more general information so available or in the receiving Party's
possession.
21.4 Hughes shall take best efforts necessary, including the appropriate
contractual provisions in subcontracts, to ensure the confidentiality of
all proprietary information of I-COGC which may be disclosed to
Subcontractors and Launch Service Providers.
I-COGC shall take best efforts necessary, including the appropriate
contractual provisions in consulting agreements, to ensure the
confidentiality of all proprietary information of Hughes which may be
disclosed to Consultants.
21.5 Except as otherwise provided in this Contract including but not limited
to ARTICLE 18, DATA RIGHTS herein, the receiving Party agrees that: (i)
any proprietary information disclosed hereunder shall be used by the
receiving Party solely for the purpose of performing its functions in
connection with the Party's relationship with respect to the Work; (ii)
it will not use the proprietary information disclosed hereunder for any
other purpose; and (iii) it will not distribute, disclose or disseminate
to anyone such proprietary information of the disclosing Party, except
that either Party may disclose to its own employees or subcontractors on
a need-to-know basis, and either Party may disclose with the consent of
the disclosing Party which consent will not be given unless such third
party executes a proprietary data protection agreement with terms
consistent with the requirements herein prior to receiving such
information.
21.6 The Parties will specify individuals in writing as the point of contact
for receiving proprietary information exchanged between the Parties
pursuant to this Contract.
21.7 I-COGC shall maintain EXHIBITS B through E, in accordance with the
Proprietary Data Agreement of even date executed between the Parties.
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21.8 The confidentiality obligations in this ARTICLE 21 shall survive
expiration or termination of this Contract for whatever cause.
21.9 Nothing herein shall require a Party to disclose proprietary information
to another.
21.10 The obligations imposed by this ARTICLE 21 shall be limited in time only
by the events listed in ARTICLE 21.3, A through E.
21.11 Neither Party shall disclose the terms or conditions of this Contract,
except as may be required to perform this Contract, to acquire financing
or insurance or the benefit thereof, in support of arbitration or legal
proceedings relating hereto, or as required by its Government or in the
normal course of reporting to its parent company of for any other reason
with the consent of the other Party, which consent shall not be
unreasonably withheld.
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ARTICLE 22 INTERPRETATION
22.1 Applicable Law
This Contract and any performance related thereto shall be interpreted
and construed, governed and enforced in accordance with the Laws of
England; it being understood that the UN Convention on the International
Sale of Goods shall not be applicable.
22.2 Amendments
The Contract may not be modified except by written amendment signed by
duly authorized representatives of both Parties.
The responsible authorized representatives of the Parties may be added
to or changed from time to time by written notice to the other Party.
Until further notice, the responsible authorized representatives are as
stated in ARTICLE 24, NOTICES.
For the purpose of administration of this Contract, including
amendments, any communication between I-COGC and Hughes shall be
enforceable and binding upon the Parties only if signed by the
appropriate responsible authorized representatives.
22.3 Changes Requested bar Hughes or I-COGC
A. Any changes requested by Hughes during the performance of this Contract,
within the general scope of this Contract, which will or may add or
delete Work, affect the provision of Launch Services or Management
Services or will affect or may affect any other requirement of this
Contract, shall be submitted in writing to I-COGC within an acceptable
time period prior to the proposed date of the change. Such submittal
shall allow I-COGC a reasonable period of time to evaluate Hughes'
requested change. If such Hughes' requested change causes an increase or
decrease in the total Contract Price, Hughes shall submit a proposal to
I-COGC.
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B. I-COGC shall notify Hughes in writing within thirty (30) Days after
receipt of the requested change and price adjustment, if any, whether or
not it agrees with and accepts such change. If I-COGC agrees with and
accepts the Hughes' requested change, Hughes shall proceed with the
performance of the Contract as changed and an amendment to the Contract
reflecting such change, and price adjustment, if any, shall be issued.
If I-COGC does not agree with such Hughes' requested change, the Parties
shall attempt to reach agreement on such change. In the event the
Parties are unable to reach agreement on such change, or price
adjustment, if any, or both, Hughes shall proceed with the performance
of the Contract, as unchanged.
C. For any changes requested by I-COGC during the performance of this
Contract which will or may affect the provision of Launch Services or
Management Services, Hughes shall respond to that request in writing to
I-COGC within thirty (30) Days after such request. If such I-COGC
requested change causes an increase or decrease in the total Contract
Price, Hughes shall submit to I-COGC, at the time the response to the
requested change is submitted, the details of such increase or decrease.
If I-COGC should question the values involved in any proposal by Hughes,
subject to the execution of a non-disclosure agreement between all
relevant Parties, Hughes shall provide access to a third party auditor
acceptable to both Parties, which third party auditor may review the
relevant cost documentation and certify to I-COGC as to the validity of
the Hughes proposal. I-COGC shall notify Hughes in writing, within a
reasonable time after receipt of Hughes' response, whether or not it
agrees with and accepts Hughes' response. If I-COGC agrees with and
accepts Hughes' response, Hughes shall proceed with the performance of
the Contract as changed and an amendment to the Contract reflecting such
change, and price adjustment, if any, shall be incorporated into the
Contract. If I-COGC does not direct such change, then Hughes shall
proceed with the performance of the Contract as unchanged.
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ARTICLE 23 PUBLICITY
Each Party shall obtain the prior written approval of the other Party, which
approval shall not be unreasonably withheld or delayed, concerning the content
and timing of news releases, articles, brochures, advertisements, prepared
speeches and other information releases concerning the Work performed or to be
performed hereunder, within a reasonable time prior to the release of such
information. For the avoidance of doubt, each Party shall be allowed to
publicize the award of the Contract, subject to the approval process stated
above.
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ARTICLE 24 NOTICES
All notices, demands or other communications required or permitted to be given
or made hereunder shall be in writing and delivered personally or sent by
prepaid first class post, or by telex, telefax or cable addressed to the
intended recipient thereof at its address set out below or to such other address
or telex or telefax number as either Party may from time to time duly notify the
other.
A. In respect of I-COGC, to:
I-CO Global Communications (Operations) Ltd.
c/o I-CO Services Limited
1 Queen Caroline Street
Hammersmith, London W6 9BN
United Kingdom
Telephone: (0181) 600-1000
Facsimile: (0181) 600-1199
Attention: Olof Lundberg
Chief Executive Officer
cc: Space Segment Contracts Administrator
ICO Program Office
Hughes Space & Communications, MS: SC/S16/V346
PO Box 92919
Los Angeles, CA, 90009
Phone: (310) 364-9383
Facsimile: (310) 364-9495
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B. In respect of Hughes, to:
Hughes Space and Communications International, Inc.
Bldg. S24, M/S D545,
Post Office Box 92919, Airport Station,
Los Angeles, California 90009
Telephone: (310) 364-5729
Facsimile: (310) 364-9644
Attention: Dennis R. Beeson
Manager, Contracts
cc: John Perkins
Vice-President, Launch Services Acquisition &
Risk Management
Bldg: R35 M/S: D435
Phone: (310) 364-4791
Facsimile: (310) 364-4775
Any notice or other document if served by post, shall be deemed to have been
served at the expiration of seven (7) Days after the time when the letter
containing the same was posted, and in proving such service it shall be
sufficient to prove that the letter containing the notice or document was
properly addressed, stamped and posted. A notice sent by telex, telefax or cable
is deemed to have been served: (1) two (2) hours after dispatch, if dispatched
on a Business Day before 3:00 PM; or (2) in any other case, at 10:00 AM on the
Business Day after the date of dispatch. Here a Business Day means a Business
Day in the city or other location to which the notice is sent, and the times
mentioned are those in that location.
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ARTICLE 25 INTEGRATION
This Contract, together with the EXHIBITS, contains the entire agreement between
the Parties relating to the subject matter hereof. All prior understandings,
representations and warranties (including those contained in sales, promotional
and/or marketing materials) by and between the Parties, written or oral, which
may be related to the subject matter hereof in any way, are superseded by this
Contract.
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ARTICLE 26 ASSIGNMENT
26.1 Hughes shall not assign, novate or transfer this Contract or any of its
rights, duties or obligations thereunder to any person or entity, in
whole or part without the prior written consent of I-COGC (which
approval shall not be unreasonably withheld or unduly delayed) except
that Hughes may assign, novate or transfer this Contract, and its duties
and obligations thereunder either in whole or in part, to any Hughes
Affiliate which is not engaged in business competitive to I-COGC
provided always that Hughes shall remain liable with respect to
performance of all duties and obligations set forth in this Contract,
including compliance with all applicable laws and regulations and
provided further that the Hughes Guarantee specified in EXHIBIT H,
HUGHES GUARANTEE, remains in full force and effect.
26.2 I-COGC shall have no right to assign, novate or transfer this Contract,
or any of its rights, duties or obligations hereunder without the prior
written consent of Hughes (which consent shall not be unreasonably
withheld or unduly delayed), except to any I-COGC Affiliate or to a
third party financing the Satellites or Launch Services provided that
each such assignment, novation or transfer shall have no material
adverse effect on a material obligation of I-COGC under this Contract,
including, but not limited to, payment obligations to Hughes under this
Contract.
26.3 In the case of an assignment, novation or transfer of this Contract by
I-COGC in accordance with ARTICLE 26.2, the I-COGC Guarantee specified
in EXHIBIT G, I-COGC GUARANTEE, shall remain in full force and effect
save where the assignment, novation or transfer is to a third party
financing the Satellites or Launch Services, in which case Hughes'
consent to release the said I-COGC Guarantee may be requested by I-COGC
and such consent shall not be unreasonably withheld, or unduly delayed.
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26.4 I-COGC shall give fifteen (15) Business Days prior notice to Hughes of
any assignment, novation or transfer and brief details explaining the
proposed transaction.
26.5 This Contract shall be binding upon the Parties hereto and their
successors and permitted assigns.
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ARTICLE 27 SEVERABILITY
In the event any one or more of the provisions of this Contract shall, for any
reason, be held to be invalid or unenforceable, the remaining provisions of this
Contract shall be unimpaired, and the invalid or unenforceable provision shall
be replaced by a mutually acceptable provision which, being valid and
enforceable, comes closest to the intention of the Parties underlying the
invalid or unenforceable provision.
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ARTICLE 28 RESERVED
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ARTICLE 29 RESERVED
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ARTICLE 30 DISPUTES AND ARBITRATION
30.1 If, during the course of performance hereunder, a dispute arises
between I-COGC and Hughes as to the rights or obligations of either
Party under this Contract, either Party may give written notice of its
objections and the reasons therefor ("Dispute Notice") and may recommend
corrective action. Hughes' Program Manager shall consult with I-COGC's
authorized senior program management representative in an effort to
reach a mutual agreement to overcome such objections. In the event
mutual agreement cannot be reached within five (5) Business Days of such
notice, the respective positions of the Parties shall be forwarded to
I-COGC's Chief Executive Officer and Hughes' President, for discussion
and an attempt to reach mutual agreement.
30.2 If mutual agreement cannot be reached within fifteen (15) Business Days
of the Dispute Notice, such dispute may be referred on the application
of either Party for final determination to an arbitration tribunal
convened by the London Court of International Arbitration which shall be
conducted by three arbitrators in the English language.
30.3 The place of arbitration shall be London, England.
30.4 The award rendered by the arbitration tribunal shall be binding on both
Parties, and shall be enforceable by any court of competent
jurisdiction. The cost of arbitration, including the fees and expenses
of the arbitrators, will be shared equally by the Parties, unless the
award otherwise provides. Each Party shall bear the cost of preparing
and presenting its own case, unless the award otherwise provides.
30.5 Notwithstanding anything else contained herein, the Parties agree that
time is of the essence with regard to the time limits imposed by this
ARTICLE 30 in resolving such dispute.
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ARTICLE 31 RESERVED
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ARTICLE 32 REPLACEMENT LAUNCHES
32.1 Replacement Launch Services. If any Launch Service herein should result
in a mission failure, I-COGC may request Hughes to provide a replacement
Launch proposal. Such request shall include I-COGC's preferred Launch
Service Provider(s), the date on which the Satellite is anticipated to
be ready for launch and any mission specific data which will influence
the provision of Launch Services for that Satellite. Within thirty (30)
Days of receipt of such a request, Hughes shall submit a proposal to
I-COGC for the acquisition of a replacement Launch Service. Any Hughes
proposal shall be based upon and subject to the terms of the applicable
Launch Service Agreement(s). Hughes agrees to provide to I-COGC any
priority scheduling right or benefit allowed for in the applicable
Launch Service Agreement(s) for the mission failure.
32.2 Hughes Proposal. Any Hughes proposal for a replacement Launch under an
existing Longterm Launch Service Agreement shall: (i) be based upon, and
be subject to, the provisions of the relevant EXHIBIT(S) B through E;
(ii) utilize the Launch Service Fee and payment schedules specified in
Table 4 and Table 5 of ARTICLE 4, CONTRACT PRICE, PAYMENT AND
ADJUSTMENTS; and (iii) include a fee of * per Launch Service. Any
Hughes proposal for a replacement Launch which does not utilize a
Longterm Launch Service Agreement shall include a Management Services
fee equal to * of the relevant Launch Service Cost initially
proposed, and finally negotiated between Hughes and the Launch Service
Provider.
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ARTICLE 33 OPTIONS
33.1 Launch Insurance. Upon receipt of a written request from I-COGC, Hughes
shall submit a proposal to I-COGC for the provision of launch insurance
for the Launch Services provided herein. Such proposal shall assume that
the launch insurance shall be obtained by Hughes on behalf of I-COGC and
that I-COGC shall be the named insured. The written request from I-COGC
shall identify the Launch Services, the coverage timing and the coverage
amounts of such launch insurance policy. Any Hughes proposal shall be
based upon the actual launch insurance cost to Hughes and shall include
an additional Management Services fee equal to * of the actual
launch insurance cost. I-COGC shall notify Hughes whether it accepts or
rejects any Hughes proposal within thirty (30) Days of receipt of such
proposal or by the offer validity date provided by the relevant
insurance underwriters, whichever is sooner. For the purposes of this
Paragraph, launch insurance may also include any relaunch, repayment or
other type of insurance program offered by any Launch Service Provider.
33.2 Additional Launch Services. At any point in time, I-COGC may request
Hughes to provide additional Launch Services under any Longterm Launch
Service Agreement. Any such request by I-COGC shall identify the
required Launch Period, preferred Launch Service Provider and Satellite
to be launched. Hughes shall provide a written proposal to I-COGC within
fifteen (15) calendar Days of receipt of such request. Any Hughes
proposal shall be subject to and conditional upon: i) the existence and
terms of a Longterm Launch Service Agreement with the Launch Service
Provider identified in such I-COGC request as of the later of the date
of (a) the relevant ICOGC request or (b) the Launch Service option
exercise; ii) compliance with the scheduling constraints specified in
ARTICLE 3.3.3 herein; iii) the availability of the Launch Vehicle in the
requested Launch Period, and iv) compliance with the Launch Service Fee
and payment schedules specified in Tables 4 and 5 of ARTICLE 4, CONTRACT
PRICE, PAYMENT AND ADJUSTMENTS. For the avoidance of doubt, if Hughes
has a launch opportunity available under a Longterm Launch Service
Agreement, subject to the terms of this ARTICLE 33.2, Hughes shall allow
I-COGC to purchase such launch opportunity to Launch an optional
Satellite.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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ARTICLE 34 LIMITATION OF LIABILITY
34.1 In no event shall either Party be liable to the other Party or its
Associates or customers under or in connection with this Contract under
any theory of contract, tort, negligence, strict liability or any other
legal or equitable theory or otherwise for special, collateral,
punitive, exemplary, consequential, indirect and/or incidental damages
(including but not limited to lost revenues, loss of goodwill, loss of
savings, loss of use, interruptions of business and claims of either
Party or for any other form of economic loss), except as expressly
provided in this Contract. It is the intent of the Parties that the
public interest is not involved in the subject matter of this Contract.
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ARTICLE 35 MISCELLANEOUS
35.1 Disclaimer of Agency. None of the provisions of this Contract shall be
construed to mean that either Party hereto is appointed or is in any way
authorized to act as an agent of the other Party. This Contract does not
constitute, create, give effect to, or otherwise recognize a joint
venture, partnership or formal business organization of any kind, and
the rights and obligations of the Parties shall be limited to those
expressly set forth herein.
35.2 Waiver of Breach of Contract. A waiver of any breach of a provision
hereof shall not be binding upon either Party unless the waiver is in
writing and such waiver shall not affect the rights of the Party not in
breach with respect to any other or future breach. No failure or delay
by any Party or time or indulgence given by it in or before exercising
any remedy or right under or in relation to this Contract shall operate
as a waiver of the same nor shall any single or partial exercise of any
remedy or right preclude any further exercise of the same or the
exercise of any other remedy or right.
35.3 Term of Contract. This Contract shall remain in full force and effect as
long as either Party is or may be required to perform any obligation
pursuant to this Contract.
35.4 Language. With respect to all correspondence relating to this Contract
and to all material, including labels and markings of equipment,
submitted by Hughes hereunder, the English language and U.S. units of
measure, or unit(s) of measure utilized by a Launch Service Provider
shall be used. Controlling language for this Contract shall therefore be
the English language.
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35.5 Key Personnel. Hughes agrees that the following individuals are
necessary for the successful completion of the Management Services and
Launch Services to be performed under this Contract and shall not be
removed from the performance of these services without the consent of
I-COGC, which consent shall not be unreasonably withheld. In the event
that these personnel become unavailable for any reason and consent is
given, Hughes shall select suitable replacement personnel who possess
comparable levels of experience, qualifications and ability.
Notwithstanding its role in approving key personnel and their
replacements, I-COGC shall have no supervisory control over their work,
and nothing in this ARTICLE shall relieve Hughes of any of its
obligations under this Contract, or of its responsibility for any acts
or omissions of its personnel.
Name Title
---- -----
J. Perkins Vice-President, Launch Services Acquisition & Risk Management
G. Dutcher Program Manager
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IN WITNESS WHEREOF, this Contract has been issued in two counterparts and signed
in the city of Brussels, Belgium on behalf of I-COGC and Hughes by persons
authorized on their behalf.
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
By:
-------------------------------
(Signature)
Name:
-----------------------------
Title:
----------------------------
I-CO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED
By:
-------------------------------
(Signature)
Name:
-----------------------------
Title:
----------------------------
81
Contract Number: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
--------------------------------------------
Exhibit A
STATEMENT OF WORK
--------------------------------------------
7 December 1995
I-CO Global Communications Hughes Space &
(Operations) Limited Communications International,
Inc.
- --------------------------- --------------------------------
Olof Lundberg Gerald L. Dutcher
Chief Executive Officer Executive Vice President
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
Contract No: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
1 MANAGEMENT SERVICES PROVIDED FOR I-COGC GLOBAL COMMUNICATIONS
(OPERATIONS) LIMITED (I-COGC) ........................................ 1
1.1 Scope.................................................................. 1
1.2 Applicable Documents................................................... 1
2 DESCRIPTION OF WORK.................................................... 2
2.1 Launch Service Provider Selection And Turn-On.......................... 2
2.1.1 Launch Schedules....................................................... 2
2.1.2 Launch Agreements...................................................... 2
2.2 Post Launch Service Provider Contract Award............................ 2
2.2.1 Management Activities.................................................. 2
2.2.1.1 Progress and Technical Meetings........................................ 3
2.2.2 Selection of Launch Slot and Launch Date............................... 3
2.2.3 Satellite/Launch Vehicle Technical Activities.......................... 3
2.2.4 Documentation.......................................................... 4
2.2.5 Launch Vehicle Acceptance ............................................. 4
2.2.6 Mission Director....................................................... 5
3 REPORTING.............................................................. 6
4 RESERVED............................................................... 7
5 LOGO................................................................... 8
6 LAUNCH CAMPAIGN ACCOMMODATION AND FACILITIES........................... 9
7 PRODUCT ASSURANCE ACTIVITIES & SAFETY.................................. 10
7.1 Launch Vehicle Qualification........................................... 10
7.2 Launch Vehicle Failure Reviews......................................... 10
7.3 Requests for Deviation/Waiver.......................................... 10
8 PAYLOAD PROCESSING FACILITIES AND SERVICES............................. 11
9 MISSION INTEGRATION.................................................... 12
10 POST MISSION SUPPORT SERVICES.......................................... 13
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
Contract No: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
1 MANAGEMENT SERVICES PROVIDED FOR I-COGC GLOBAL
COMMUNICATIONS (OPERATIONS) LIMITED (I-COGC)
1.1 Scope. This Statement of Work defines the Management Services to be
provided by Hughes Space and Communications International, Inc.,
(Hughes) to I-COGC for the supply of Launch Services and the overall
management of the Launch Service Agreements for Launch of I-COGC's
twelve (12) Satellites. Hughes shall assume all day-to-day management
activities relative to the procurement of Launch Services.
1.2 Applicable Documents. Satellite Contract Between Hughes Space and
Communications International, Inc. and I-COGC Global Communications
(Operations) Limited, dated 3 October 1995, Contract Number
ICOO/95-1002/NR.
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Contract No: ICOO/95-1003/YW STATEMENT OF WORK
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2 DESCRIPTION OF WORK
2.1 Launch Service Provider Selection And Turn-On. Hughes shall ensure that
the contract provisions with the Launch Service Providers enable Hughes
to meet the requirements defined in this Statement of Work, and are
fully consistent with the Satellite design, Designated Launch Site
processing and mission requirements.
2.1.1. Launch Schedules. Hughes shall schedule each of the respective
Satellite Launches with a Launch Service Provider in sufficient
time to assure that the scheduling requirements of the Contract
are satisfied. Hughes shall provide alternate Launch risk
management plans in the event scheduling problems develop.
2.1.2 Launch Agreements. Launch Services via Long Term Launch Service
Agreements shall be employed to satisfy the terms of this
Contract, or at I-COGC's direction, Hughes shall develop, in
conjunction with I-COGC, the appropriate and necessary Request
For Proposal (RFP) documentation (when necessary), consistent
with the requirements, terms and conditions of this Contract and
the Satellite Contract to enable the competitive solicitation of
bids from alternate Launch Service Providers.
Hughes shall manage this program so as to minimize the impact of
any Launch Service Provider substitution.
2.2 Post Launch Service Provider Contract Award
2.2.1 Management Activities. After Launch Service Provider turn-on or
award of a Launch Service Agreement, Hughes shall provide all
appropriate management and technical services to support the
Satellite to Launch Vehicle interface activities and shall be
responsible for all Contract management functions, including but
not limited to:
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
Contract No: ICOO/95-1003/YW STATEMENT OF WORK
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- Negotiation of contract changes
- Management and tracking of program milestones
- Coordination of data/information exchanges, and
- Data approvals as required by the Launch Service Agreement
2.2.1.1 Progress and Technical Meetings. Regular progress meetings shall
be conducted as necessary with the Launch Service Providers to
which I-COGC shall be invited. As a minimum these will be held
at quarterly intervals and may be combined with technical
interface meetings for expediency.
2.2.2 Selection of Launch Slot and Launch Date. Hughes shall
coordinate the development of the Launch Service Master Phasing
Schedule and monitor progress against major milestones.
Hughes shall coordinate with I-COGC the selection of the
relevant Launch Slot and Launch Date consistent with the
schedule established by I-COGC requirements. Hughes shall
initiate discussion with I-COGC at least thirty (30) calendar
Days prior to the determination dates for the establishment of
the Launch Slot and Launch Date.
2.2.3 Satellite/Launch Vehicle Technical Activities. Hughes shall
coordinate the overall schedule for the Launch Services and
content of meetings and major reviews throughout the
Satellite/Launch Vehicle integration process.
Hughes shall coordinate the Launch Vehicle and Satellite
integration process and provide the management interface to
ensure that technical requirements, data and analyses are
established and coordinated between the engineering staffs of
the Satellite Program Office and the Launch Service Provider.
Hughes shall maintain and report the status of all action items
generated from the above meetings and coordinate their
resolution.
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2.2.4 Documentation. Hughes shall review and provide I-COGC all
documentation, analyses and reports prepared under this
Contract, in accordance with the applicable Launch Service
Agreement, which are required to successfully complete the
integration process. These may include, but are not limited to:
- Interface Control Documents
- Coupled Loads Analysis
- Thermal Analysis
- Integration and Mission Analyses
- Launch Operations and Safety Planning
- Separation analysis
- Venting analysis
- Clearance analysis
- Launch operations and safety documents
- Payload matchmates and separation shock tests when
required.
- Trajectory, Guidance Targeting, Accuracy analysis and
associated orbit characteristics and dispersion
- Launch Vehicle contamination and cleanliness analysis
- Launch Failure Reports, if applicable
2.2.5 Launch Vehicle Acceptance. Hughes shall monitor all work in
progress and the final acceptance of the Launch Vehicle in
accordance with the applicable Launch Service Agreement. This
shall include, but is not limited to:
- review of progress reports submitted by the relevant
Launch Service Provider
- attending major reviews
- tracking problem resolutions
2.2.6 Mission Director
Hughes shall act in the capacity of Mission Director (i.e., the
individual responsible for providing the Satellite status during
the Launch campaign and the final go/no-go decision for Launch
to the Launch Service Provider) for I-COGC during the Launch.
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3.0 REPORTING
Hughes shall provide I-COGC with full visibility of Contract and
technical actions by providing a monthly progress report to the I-COGC
resident team. The format of this report shall be jointly agreed upon by
I-COGC and Hughes and shall be adjusted over the life of the program as
necessary.
Hughes shall inform I-COGC, or its designated representative, of the
date and time of all significant meetings (i.e. Preliminary Design
Reviews, Critical Design Reviews, Management Review Meetings, etc.), and
I-COGC personnel or their designated representative, as they choose, may
attend any of the meetings held with the Launch Service Provider and/or
the Satellite manufacturer. This attendance shall be limited to three
(3) I-COGC personnel. Additional I-COGC personnel may attend as mutually
agreed upon by I-COGC, Hughes and the Launch Service Provider.
Hughes shall notify I-COGC promptly, initially either in person or by
telephone and then shall confirm in writing within seven (7) Days, of
any material event, circumstance, or development which the Hughes
Mission Manager reasonably believes will affect (a) the quality of any
Launch Vehicle or component part thereof or any services or data and
documentation to be provided herein, or (b) the Launch Schedule(s)
herein. Notifications made pursuant to this Paragraph are intended to
supplement but not replace information available or provided to I-COGC
pursuant to this Article.
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4.0 RESERVED
[ILLEGIBLE]
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5.0 LOGO
The Launch Service Provider shall include provision for the inclusion of
the I-COGC logo on each Launch Vehicle fairing. I-COGC shall supply
final details of the logo no later than Launch minus twelve Months
(2-12) for the first Launch on each type of Launch Vehicle (i.e. Atlas
IIA, Proton, Delta III, Zenit, etc.).
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6.0 LAUNCH CAMPAIGN ACCOMMODATION AND FACILITIES
Hughes shall assure that the Launch Service Providers will make
available office space for up to three (3) I-COGC residents and/or
representatives at the Launch Service Provider's Satellite processing
and Designated Launch Site facility, for the duration of the Satellite
Launch campaign. These facilities shall be co-located with those of the
Hughes Launch support team. Appropriate telephone, fax, copying and
other general office facilities shall be provided. I-COGC shall have
full access to all appropriate data and monitoring facilities at the
Designated Launch Site which are available to the Hughes Launch team.
In the case of Proton or Zenit Launches where commercially available
off-base housing, transport and general living facilities are not
available, Hughes shall, if requested, arrange to supply these to the
I-COGC personnel in the same manner provided to its own Launch team. All
charges, if any, incurred by Hughes for the provision of these living
facilities, food and transportation shall be billed to I-COGC.
Note: i For Launches conducted in Baikonur, there is a charge of
between $115.00 US and $135.00 US (depending on the year of the
Launch) for lodging and all food service per person per day. A
charge of $900.00 US per person is levied for round trip
transportation from Moscow to the Baikonur Launch Site and all
associated ground transportation.
ii For Zenit Launches transportation for I-COGC personnel to Long
Beach, California, and/or any other point of debarkation of the
command and control ship or any air transportation, or surface
ship transport to the command and control ship at sea, shall be
borne by I-COGC. Any cost for I-COGC personnel's lodging, meals,
transportation and recreation, while on board the command and
control ship, shall be borne by I-COGC, but shall not to exceed
$200.00 US per day per person. If Hughes is not charged for
lodging, meals and transportation while on board the command and
control ship, no cost will be passed to I-COGC.
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7.0 PRODUCT ASSURANCE ACTIVITIES & SAFETY
7.1 Launch Vehicle Qualification. Hughes shall ensure that the
Launch Service Provider clearly indicates the qualification
status of the Launch Vehicle and assures that any new, modified
or mission peculiar items have been qualified. All items falling
into this category shall be highlighted to I-COGC.
7.2 Launch Vehicle Failure Reviews. Hughes shall ensure that I-COGC
is appropriately involved in any Launch Vehicle failure review
board activities relevant to I-COGC Launch Vehicle hardware or
which may impact the ability of the Launch Service Provider to
deliver on time. The level of involvement will vary. However any
failure occurring shortly and in particularly immediately before
a planned I-COGC Launch shall include full disclosure and
participation rights.
7.3 Requests for Deviation/Waiver. All Launch Service Provider
deviations/waivers affecting key performance margins, interface
control documents or mission requirements shall be promptly
submitted to I-COGC for review.
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8.0 PAYLOAD PROCESSING FACILITIES AND SERVICES
Hughes shall be responsible for arranging all necessary payload
processing facilities and services required to safely and efficiently
support Satellite payload processing at the Designated Launch Site,
including any Satellite test activities.
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9.0 MISSION INTEGRATION
Hughes shall, as a minimum, conduct the following mission reviews and
meetings with the Launch Service Provider, to which I-COGC personnel
shall be invited:
- Technical Working Groups (as needed).
- Preliminary and Critical Mission Peculiar Design Reviews
(typically only held once per Launch).
- Ground Operations Readiness Reviews (typically at L-12 and L-6
months).
- Launch Vehicle Readiness Review (typically 2 days before each
Launch)
- Launch Readiness Review (typically 1 day before each Launch)
- Launch Vehicle quality and/or systems reviews if provided by
Launch Service Providers.
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10.0 POST MISSION SUPPORT SERVICES
Hughes shall provide all necessary post mission support services.
These shall include but are not limited to:
- Satellite orbit and attitude data at separation, within 45
minutes of separation.
- Post Launch evaluation report (Satellite flight environment and
separation assessment) from Launch Vehicle telemetry.
95
1 JULY 1996 - AMENDMENT 1
4.7.2.6a
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
-------------------------
EXHIBIT F
MILESTONE PAYMENT PLAN
-------------------------
7 DECEMBER 1995
96
* [EXHIBIT F AMENDMENT 1 TOTAL OF 7 PAGES HAVE BEEN REDACTED]
* Confidential Treatment Requested and the Redacted Material has
been separately filed with the Commission.
97
*
98
*
99
*
100
*
101
*
102
*
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--------------------------------------------
EXHIBIT G
I-COGC GUARANTEE
--------------------------------------------
7 December 1995
I-CO Global Communications Hughes Space &
(Operations) Limited Communications International,
Inc.
- --------------------------- --------------------------------
Olof Lundberg Gerald L. Dutcher
Chief Executive Officer Executive Vice President
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Contract No: ICOO/95-1003/YW I-COGC GUARANTEE
- --------------------------------------------------------------------------------
1. In consideration of Hughes Space and Communications International, Inc
("Hughes" entering into a contract with I-CO Global Communications
(Operations) Limited ("I-COGC") for the supply of launch services and
the management thereof for the I-CO Program dated 7 December, 1995 (as
such contract may be amended, varied, extended, renewed or supplemented
from time to time, the "Launch Vehicle Contract" and expressions defined
in the Launch Vehicle Contract shall have the same meanings in this
Guarantee) and for sufficient consideration (receipt whereof the
Guarantor hereby acknowledges) I-CO GLOBAL COMMUNICATIONS (HOLDINGS)
LIMITED (the "Guarantor") hereby unconditionally guarantees the payment
on the due date of all sums payable now or in the future to Hughes by
I-COGC under the Launch Vehicle Contract when and as the same become due
and the full, prompt and complete performance by I-COGC of all its
obligations under the Launch Vehicle Contract.
2. The Guarantor hereby unconditionally and irrevocably agrees as a
separate, continuing and primary obligation to indemnify Hughes on
demand should any amount due under Clause 1 not be recoverable from the
Guarantor on the basis of a guarantee for any reason whatsoever.
3. The Guarantor's obligations under this Guarantee shall be subject to all
the relevant terms and conditions of the Launch Vehicle Contract and
nothing in this Guarantee shall constitute a waiver by I-COGC or the
Guarantor of any defense, claim or counterclaim available to I-COGC
under the Launch Vehicle Contract or otherwise. Subject to paragraph 2
above, the Guarantor's sole obligation under this Guarantee shall be as
guarantor of the obligations of I-COGC under the Launch Vehicle
Contract, subject to all of the limitations an such obligations which
are provided for in such Launch Vehicle Contract or under applicable law
except for such limitations as may arise in law as a result of
bankruptcy, insolvency or reorganisation proceedings relating to I-COGC.
The Guarantor hereby acknowledges that its liability as Guarantor under
this Guarantee shall not be discharged or impaired in any way by:
(a) any compromise or release of or abstention from perfecting or
enforcing any right or remedy against I-COGC or any other
person; or
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(b) any release of or granting of time to I-COGC or any other
indulgence, waiver, consent or concession being granted at any
time to I-COGC or any other person; or
(c) any other act, omission, dealing, matter or thing whatsoever
(including, without limitation, any change in the memorandum
or articles of association (or their equivalent) of I-COGC, or
any irregularity, unenforceability or invalidity of any
obligations of I-COGC under the Launch Vehicle Contract or the
liquidation, dissolution, reconstruction, amalgamation or
bankruptcy of I-COGC or any other change in the corporate
relationship between the Guarantor and I-COGC including any
merger, consolidation or sale of assets of I-COGC; or
(d) any legal limitation, disability, incapacity or other
circumstances relating to I-COGC or any other person or any
amendment to or extension or variation of the terms of the
Launch Vehicle Contract or any other document referred to in the
Launch Vehicle Contract.
4. The Guarantor hereby declares and agrees that this Guarantee shall be
held by Hughes as a continuing security and shall not be satisfied by
any intermediate payment or satisfaction of any part of the obligations
hereby guaranteed and shall remain in full force and effect until all
the obligations of I-COGC under the Launch Vehicle Contract have been
performed and all sums payable by I-COGC under the Launch Vehicle
Contract have been fully paid and discharged in full in each case in
accordance with the Launch Vehicle Contract and subject to all the
provisions therein contained.
5. This Guarantee shall be in addition to, and not in substitution for, any
other rights which Hughes may now or hereafter have under or by virtue
of any guarantee or security or agreement or any lien or by operation of
law or under any collateral or other security now or hereafter held by
Hughes or to which Hughes may be entitled.
6. Any release, compromise or discharge of the obligations of the Guarantor
under this Guarantee shall be deemed to be made subject to the condition
that it will be void if any payment or security which Hughes may receive
or have received is set aside or proves invalid for whatever reason.
106
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- --------------------------------------------------------------------------------
7. All payments to be made by the Guarantor to Hughes under this Guarantee
shall be made on the due date in United States Dollars and in cleared
funds and to such account as Hughes shall specify and shall be made free
and clear of, and without deduction for or on account of, any present or
future taxation, unless the Guarantor is required by law or regulation
to make payment subject to any taxation, in which event such payment
shall be increased by such amount as may be necessary to ensure that
Hughes receives a net amount, which, after deducting or withholding such
taxation, is equal to the full amount which Hughes would have received
had such payment not been subject to such taxation.
8. The Guarantor shall be subrogated to the rights of Hughes against I-COGC
in respect of any amounts paid by the Guarantor to Hughes pursuant to
the provisions of this Guarantee; provided, however, that the Guarantor
shall not be entitled to enforce or receive any payments arising out of,
or based upon, such right of subrogation, or any related claim for
exoneration, indemnification or reimbursement that the Guarantor may now
have or hereafter acquire against I-COGC in any way related to or
arising from the obligations of I-COGC under the Launch Vehicle
Contract, until such obligations or, as the case may be the relevant
part thereof, shall have been paid and performed in accordance with the
terms and conditions of the Launch Vehicle Contract.
9. In addition to the liability otherwise assumed in this Guarantee, the
Guarantor shall immediately reimburse Hughes for all costs and expenses,
including all reasonable legal fees and costs, incurred by Hughes in the
collection or enforcement of any liability under this Guarantee.
However, if the Guarantor is the prevailing party in any proceedings to
collect or enforce any liability under this Guarantee, Hughes agrees
that it shall immediately reimburse the Guarantor for all costs and
expenses, including all reasonable legal fees and costs, which the
Guarantor may incur in connection with any such proceedings, and the
Guarantor shall have no liability to Hughes under the preceding sentence
in this paragraph 9 in any such proceeding.
10. This Guarantee and any provision hereof may be waived, amended, modified
or supplemented as between Hughes and the Guarantor only by an agreement
or instrument in writing executed by the Guarantor and Hughes.
11. Any notice, demand or other communication required or permitted to be
made
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- --------------------------------------------------------------------------------
hereunder shall be in writing and signed by or an behalf of the person
giving it. Except in the case of personal service, any notice shall be
sent or delivered to the party to be served at the address or to the
facsimile number set out below and if a person or officer is named for
the purpose, the notice shall be marked for his attention. Any
alteration in such details shall, to have effect, be notified to the
other parties in accordance with this clause.
12. Service of a notice must be effective by one of the following methods:
12.2.1 personally on the Chief Executive Officer or the Company
Secretary of either party and shall be treated as served at the
time of such notice;
12.2.2 by prepaid first class post (or by airmail if from one country
to another) and shall be treated as served on the second (or if
by airmail the fourth) Business Day after date of posting. In
proving service it shall be sufficient to prove that the
envelope containing the notice was correctly addressed, postage
paid and posted; or
12.2.3 by delivery of the notice through the letterbox of the party to
be served or by sending it by facsimile and shall be treated as
served on the first Business Day after the date of such delivery
or sending. In proving service by facsimile it shall be
sufficient to prove that the facsimile was preceded by the
answerback code of the party to whom it was sent.
A. In respect of the Guarantor, to:
I-CO Global Communications (Holdings) Limited
c/o I-CO Services Limited
1 Queen Caroline Street
London W6 9BN
Telephone: (181 600-1000)
Facsimile: (181 600-1199)
Attention: Olof Lundberg
108
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Contract No: ICOO/95-1003/YW I-COGC GUARANTEE
- --------------------------------------------------------------------------------
B. In respect of Hughes, to:
Hughes Space and Communications International, Inc
Bldg. S24, M/S D545
Post Office Box 92919, Airport Station
Los Angeles, California 90009
Telephone (310) 364-5729
Facsimile (310) 364-9644
Attention: Dennis R. Beeson
Manager, Contracts
13. This Guarantee shall be governed by, and construed in accordance with
English law. The provisions of Article 30 of the Launch Vehicle COntract
(Disputes and Arbitration) shall apply mutatis mutandis to this
Guarantee.
Dated day of December, 1995
- ----------------------------------------
FOR AND ON BEHALF OF
I-CO GLOBAL COMMUNICATIONS
(HOLDINGS) LIMITED
- ----------------------------------------
FOR AND ON BEHALF OF
HUGHES SPACE AND COMMUNICATIONS
INTERNATIONAL, INC
109
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EXHIBIT H
HUGHES GUARANTEE
7 DECEMBER 1995
I-CO Global Communications Hughes Space &
(Operations) Limited Communications International,
Inc.
- --------------------------------- ------------------------------
Olof Lundberg Gerald L. Dutcher
Chief Executive Officer Executive Vice President
110
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT ("Guarantee") dated as of December _____, 1995, between
HUGHES ELECTRONICS CORPORATION, a Delaware corporation ("Guarantor") and I-CO
GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED, a company incorporated in the Cayman
Islands as an Exempted Company having its registered office at the Huntlaw
Building, P.O. Box 1350, Fort Street, Georgetown, Grand Cayman, Cayman Islands
("Beneficiary").
For value received, and to induce Beneficiary to enter into that certain
Contract for Launch Services Supply and Management, dated December __, 1995 (the
"Contract") with HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a Delaware
corporation and an indirect wholly-owned subsidiary of Guarantor ("Obligor"),
Guarantor agrees with Beneficiary as follows:
1. Guarantee. Guarantor undertakes and guarantees the full, prompt and
complete performance by Obligor of all its obligations under the
Contract and the due and punctual payment of all sums which are payable
by the Obligor to the Beneficiary under the Contract when the same shall
become due and undertakes with the Beneficiary that if the Obligor shall
default in the payment of any sum which is due and payable to
Beneficiary under the Contract, the Guarantor shall pay such sum to
Beneficiary, within ten (10) days after demand in writing by
Beneficiary. Guarantor's obligations to Beneficiary under this Guarantee
shall in each case be subject to all the relevant terms and conditions
of the Contract and applicable law and nothing in this Guarantee shall
be deemed to constitute a waiver by the Obligor or the Guarantor of any
defense, claim or counterclaim available to the Obligor under the
Contract or under applicable law. Subject to paragraph 2 below,
Guarantor's sole obligation to Beneficiary under this Guarantee shall be
as guarantor of the obligations of Obligor under the Contract, subject
to all of the limitations on such obligations which are provided for in
such Contract or under applicable law (except for such limitations as
may arise as the result of a bankruptcy, insolvency or reorganization
proceeding of Obligor).
2. The Guarantor hereby unconditionally and irrevocably agrees as a
separate, continuing and primary obligation to indemnify the Beneficiary
on demand should any amount due under Clause 1 not be recoverable from
the Guarantor on the basis of a guarantee for any reason whatsoever.
3. Continuing Guarantee. The Guarantee in paragraph 1 is a continuing
guarantee and shall remain in force until all obligations of the Obligor
under the Contract have been fully performed and all sums payable by the
Obligor have been fully paid, in each case in accordance with the
Contract and subject to all the provisions therein contained.
4. Waivers of Notice, etc. The obligations of the Guarantor under this
Guarantee shall not be affected by any act, omission, matter or thing
which, but for this provision, might operate to release or otherwise
exonerate the Guarantor from its obligations or affect such obligations
including without limitation and whether or not known to Guarantor:
(a) any time, indulgence, waiver or consent at any time given to the
Obligor or any other person;
(b) any compromise or release of or abstention from perfecting or
enforcing any right or remedy against the Obligor or any other
person;
111
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- --------------------------------------------------------------------------------
(c) any legal limitation, disability, incapacity or other
circumstance relating to Obligor or any other person or any
amendment to or variation of the terms of the Contract or any
other document referred to in the Contract;
(d) any change in the corporate relationship between the Obligor and
Guarantor, including any merger, consolidation or sale of assets
of Obligor; and
(e) any irregularity, unenforceability or invalidity of any
obligations of the Obligor under the Contract or the
dissolution, reconstruction or insolvency of the Obligor.
5. No Waiver by Beneficiary. No failure on the part of the Beneficiary, or
delay by Beneficiary, in exercising any right under or with respect to
this Guarantee shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right of Beneficiary under
or with respect to this Guarantee or the Contract.
6. Any release, compromise or discharge of the obligations of the Guarantor
under this Guarantee shall be deemed to be made subject to the condition
that it will be void if any payment or security which the Beneficiary
may receive or have received is set aside or proves invalid for whatever
reason.
7. All payments to be made by the Guarantor to the Beneficiary under this
Guarantee shall be made on the due date in United States Dollars and in
cleared funds and to such accounts as the Beneficiary shall specify and
shall be made free and clear of, and without deduction for or on account
of, any present or future taxation, unless the Guarantor is required by
law or regulation to make payment subject to any taxation, in which
event such payment shall be increased by such amount as may be necessary
to ensure that the Beneficiary receives a net amount, which, after
deducting or withholding such taxation, is equal to the full amount
which the Beneficiary would have received had such payment not been
subject to such taxation.
8. Right of Subrogation. Guarantor shall be subrogated to the Rights of the
Beneficiary against Obligor in respect of any amounts paid by Guarantor
to Beneficiary pursuant to the provisions of this Guarantee; provided,
however, that Guarantor shall not be entitled to enforce or receive any
payments arising out of, or based upon, such right of subrogation, or
any related claim for exoneration, indemnification or reimbursement that
Guarantor may now have or hereafter acquire against Obligor in any way
related to or arising from the obligations of Obligor under the
Contract, until all such obligations shall have been paid and performed
in accordance with the terms and conditions of the Contract or
applicable law.
9. Attorneys' Fees and Costs. In addition to the liability otherwise
assumed in this Guarantee, Guarantor agrees to forthwith reimburse
Beneficiary for all costs and expenses, including all reasonable
attorneys' fees and costs, incurred by Beneficiary in the collection or
enforcement of any liability under this Guarantee. However, if Guarantor
is the prevailing party in any proceeding to collect on or enforce any
liability under this Guarantee, Beneficiary agrees to forthwith
reimburse Guarantor for all costs and expenses, including all reasonable
attorneys' fees and costs, which Guarantor may incur in connection with
any such proceeding, and Guarantor shall have no liability to
Beneficiary under the preceding sentence in this paragraph 6 in any such
proceeding.
112
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
10. Amendments. This Guarantee and any provision hereof may be waived,
amended, modified or supplemented as between Beneficiary and Guarantor
only by an agreement or instrument in writing executed by Guarantor and
Beneficiary; and neither this Guarantee nor any provision hereof shall
be varied, contradicted or explained by an oral agreement, course of
dealing or performance, usage of trade or any other matter not set forth
in an agreement or instrument in writing and executed as specked above.
11. Notices.
11.1 Any notice, demand or other communication required or permitted
to be made hereunder shall be in writing and signed by or on
behalf of the person giving it. Except in the case of personal
service, any notice shall be sent or delivered to the party to
be served at the address or to the facsimile number set out
below and if a person or officer is named for the purpose, the
notice shall be marked for his attention. Any alteration in such
details shall, to have effect, be notified to the other parties
in accordance with this clause.
11.2 Service of a notice must be effective by one of the following
methods:
11.2.1 personally on the Chief Executive Officer or the Company
Secretary of either party and shall be treated as served
at the time of such notice;
11.2.2 by prepaid first class post (or by airmail if from one
country to another) and shall be treated as served on
the second (or if by airmail the fourth) Business Day
(as defined in the Contract) after date of posting. In
proving service it shall be sufficient to prove that the
envelope containing the notice was correctly addressed,
postage paid and posted; or
11.2.3 by delivery of the notice through the letterbox of the
party to be served or by sending it by facsimile and
shall be treated as served on the first Business Day
after the date of such delivery or sending. In proving
service by facsimile it shall be sufficient to prove
that the facsimile was preceded by the answerback code
of the party to whom it was sent.
A. In respect of the Beneficiary, to:
ICO Global Communications (Operations) Ltd.
c/o I-CO Services Limited
1 Queen Caroline Street
London W69BN
United Kingdom
Telephone: (181) 600-1000
Facsimile: (181) 600-1199
Attention: Olof Lundberg
B. In respect of the Guarantor, to:
Hughes Space and Communications
International, Inc.
Bldg. S24, Mail Station D545
Post Office Box 92919, Airport Station
Los Angeles, California 90009
113
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
Telephone: (310) 364-5729
Facsimile: (310) 364-9644
Attention: Dennis R. Beeson
Manager, Contracts
114
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
12. Applicable law and jurisdiction.
12.1 This Guarantee shall be governed by and construed in accordance
with the laws of England.
12.2 The provisions of ARTICLE 30 (Disputes and Arbitration) of the
Contract shall apply mutatis mutandis to this Guarantee.
Dated _____ day of December, 1995
--------------------------------------
for and on behalf of
I-CO GLOBAL COMMUNICATIONS
(OPERATIONS) LTD.
--------------------------------------
for and on behalf of
HUGHES ELECTRONICS
CORPORATION
115
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
EXHIBIT I
TERMINATION LIABILITY CALCULATION
7 DECEMBER 1995
I-CO Global Communications Hughes Space &
(Operations) Limited Communications International, Inc.
- --------------------------------- ----------------------------------
Olof Lundberg Gerald L. Dutcher
Chief Executive Officer Executive Vice President
116
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
CONTRACT NO: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- -------------------------------------------------------------------------------
TABLE OF CONTENTS
1 Termination Calculations ........................................... 1
2 Termination Liabilities ............................................ 2
2.1 Atlas IIA Termination Liability .................................... 2
Delta-III Termination Liability .................................... 2
Proton Termination Liability ....................................... 3
Zenit Termination Liability ........................................ 3
2.2 Effect of Atlas Launch Service Postponement ........................ 3
2.3 Effect of Sea Launch Launch Service Postponement ................... 4
2.4 Effect of Proton Launch Service Postponement ....................... 4
2.5 Effect of Delta-III Launch Service Postponement .................... 4
2.6 Delta-III Termination Liability Mitigation ......................... 5
2.7 Alternate Launch Service Provider(s) ............................... 6
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- -------------------------------------------------------------------------------
1 TERMINATION CALCULATIONS
CALCULATION 1. If the Termination Liability in ARTICLE 17 of the
Contract ("Termination Liability") is to be calculated in accordance
with CALCULATION 1, then the Termination Liability of I-COGC to Hughes
for each terminated Launch Service shall equal the amount derived from
the formula below:
-----------------------------------------------------------------------
Launch Service Cost x the relevant Termination Liability Percentage
defined herein
-----------------------------------------------------------------------
CALCULATION 2. If the Termination Liability in ARTICLE 17 of the
Contract is to be calculated in accordance with CALCULATION 2, then the
Termination Liability of I-COGC to Hughes for each terminated Launch
Service shall equal the amount derived from the applicable formula
below:
1) For each Launch Service provided via a Longterm Launch Service
Agreement:
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
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- -------------------------------------------------------------------------------
2. TERMINATION LIABILITIES
2.1 Termination Liabilities for each terminated Launch Service provided via
a longterm Launch Services Agreement shall be as follows:
ATLAS IIA Termination liability
*
Delta-III Termination Liability
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
- -------------------------------------------------------------------------------
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*
Zenit Termination Liability
*
2.2 Effect of Atlas Launch Service Postponement. In the event that the Atlas
Launch Service Provider declares a delay to the Launch Slot or Launch
Period, the revised Launch Period as agreed between Hughes and the Atlas
Launch Service Provider shall be used for the purpose of determining the
appropriate percentage to utilize in calculating the applicable
termination charge. In the event that Hughes or I-COGC declare a delay
to the Launch Period or Launch Slot, the Launch Period or Launch Slot in
effect prior to the declaration of delay shall be used for the purpose
of determining the appropriate percentage to utilize in calculating the
applicable termination charge.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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2.3. Effect of Sea Launch Service Postponement. If Sea Launch declares or
experiences a postponement for any Launch Service, the revised Launch
Period, Launch Slot or Launch Date (as applicable) shall be used for the
purpose of determining the appropriate percentage to utilize in
calculating the Termination Liability for the postponed Launch
Service(s). In the event that Hughes or I-COGC declares a delay to a
Zenit Launch Service, (i) the Termination Liability value for the
postponed Launch Service, as of the date of postponement, shall be
calculated utilizing the applicable table above and shall remain
constant (i.e. not increase) during the applicable postponement period;
and (ii) upon conclusion of the postponement period, the Termination
Liability for the postponed Launch Service shall again increase based
upon the applicable Termination Liability table above and the revised
Launch Period, Launch Slot or Launch Date (as applicable) as agreed
between Hughes and the Zenit Launch Service Provider.
2.4 Effect of Proton Launch Service Postponement. If the Proton Launch
Service Provider declares or experiences a postponement for any Launch
Service, the revised Launch Period, Launch Slot or Launch Date (as
applicable) shall be used for the purpose of determining the appropriate
percentage to utilize in calculating the Termination Liability for the
postponed Launch Service(s). In the event that Hughes or I-COGC declares
a delay to a Proton Launch Service, (i) the Termination Liability value
for the postponed Launch Service, as of the date of postponement, shall
be calculated utilizing the applicable table above and shall remain
constant (i.e. not increase) during the applicable postponement period;
and (ii) upon conclusion of the postponement period, the Termination
Liability for the postponed Launch Service shall again increase based
upon the applicable Termination Liability table above and the revised
Launch Period, Launch Slot or Launch Date (as applicable) as agreed
between Hughes and the Proton Launch Service Provider.
2.5 Effect of Delta-III Launch Service Postponement, If the Delta-III Launch
Service Provider declares or experiences a postponement for any Launch
Service, the revised Launch Period, Launch Slot or Launch Date (as
applicable) shall be used for the purpose of determining the appropriate
percentage to utilize in calculating the Termination Liability for the
postponed Launch Service(s).
- -------------------------------------------------------------------------------
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In the event that Hughes or I-COGC declares a delay to a Delta-III Launch
Service prior to Launch minus 24 months, i) the Termination Liability value for
the postponed Launch Service, as of the date of postponement, shall be
calculated utilizing the applicable table above and shall remain constant (i.e.
not increase) during the applicable postponement period; and ii) upon conclusion
of the postponement period, the Termination Liability for the postponed Launch
Service shall again increase based upon the applicable Termination Liability
table above and the revised Launch Semester as agreed between Hughes and the
Delta-III Launch Service Provider. In the event that Hughes or I-COGC declare a
delay to a Delta-III Launch Service after Launch minus 24 months, the Launch
Period or Launch Slot in effect prior to the declaration of delay shall be used
for the purpose of determining the appropriate percentage to utilize in
calculating the applicable termination charge.
2.6 Delta-III Termination Liability Mitigation. If any Delta-III Launch
Service is terminated by I-COGC for convenience, then I-COGC shall be
entitled to receive an equitable adjustment to the Termination Liability
amount if any Hardware (for the purposes of this Paragraph, Hardware is
defined as the affected Launch Vehicles) or any portion thereof) is
subsequently utilized for Launch Services for any third party customer
of the Delta-III Launch Service Provider. Upon the transfer or
utilization of any Hardware (as defined in EXHIBIT C) for a Launch
Service for such third party customer, the Parties and the Delta-III
Launch Service Provider shall negotiate in good faith to determine the
amount of the applicable equitable adjustment. Such applicable equitable
adjustment shall account for, via exclusion, the Launch Service
Provider's reasonable costs, including but not limited to inventory
carrying fees, unrecoverable costs, reasonable re-programming costs, and
the Launch Service Provider's profit which would have been earned had
the Launch Service not been terminated, for each terminated Launch. Any
equitable adjustment shall be payable by the Launch Service Provider
within thirty (30) days of the later of i) the completion of good faith
negotiations between the Parties; or ii) the sale of the eleventh Delta
III Launch Service by the Launch Service Provider, to any party,
excluding any Launch terminated herein. Hughes shall forward to I-COGC
any equitable adjustment value derived in accordance with this paragraph
within five (5) Business Days of receipt of such amount from the
Delta-III Launch Service Provider.
- -------------------------------------------------------------------------------
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- -------------------------------------------------------------------------------
2.7 Alternate Launch Provider(s). Termination Liability percentages/amounts
for Launch Services not provided via a Longterm Launch Service Agreement
shall be incorporated into this EXHIBIT I upon the execution of a Launch
Service Agreement between Hughes and the relevant Launch Service
Provider (such agreement must be approved by I-COGC prior to
execution).
- -------------------------------------------------------------------------------
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CONTRACT NO: ICOO/95-1003/YW
- -------------------------------------------------------------------------------
Contract Number: ICOO/95-1003/YW
AMENDMENT 1
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS)
LIMITED
&
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
7 December 1995
124
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CONTRACT NO: ICOO/95-1003/YW
- -------------------------------------------------------------------------------
TABLE OF CONTENTS
Article Title
------- -----
1 Definitions ....................................................... 2
2 Scope of Work ..................................................... 8
3 Launch Scheduling ................................................. 9
4 Contract Price, Payment and Adjustments ........................... 22
5 Manifest Management ............................................... 31
6 Reserved .......................................................... 32
7 Permits and Licenses: Government Approvals ........................ 33
8 Launch Reviews .................................................... 35
9 Title ............................................................. 36
10 Force Majeure ..................................................... 37
11 Reserved .......................................................... 39
12 Access to Work in Progress and Data ............................... 40
13 Indemnification ................................................... 41
14 Warranty .......................................................... 43
15 Risk to Satellite ................................................. 44
16 US Government Third Party indemnification ......................... 45
17 Termination ....................................................... 46
18 Data Rights ....................................................... 54
19 Reserved .......................................................... 55
20 Rights in Inventions .............................................. 56
21 Confidentiality ................................................... 57
22 Interpretation .................................................... 60
23 Publicity ......................................................... 62
24 Notices ........................................................... 63
25 Integration ....................................................... 65
26 Assignment ........................................................ 66
27 Severability ...................................................... 68
28 Reserved .......................................................... 69
29 Reserved .......................................................... 70
30 Disputes and Arbitration .......................................... 71
31 Reserved .......................................................... 72
32 Replacement Launches .............................................. 73
33 Options ........................................................... 74
34 Limitation of Liability ........................................... 76
35 Miscellaneous ..................................................... 77
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- -------------------------------------------------------------------------------
THIS CONTRACT is effective as of the 7th Day of December, 1995.
BETWEEN:
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED, a company incorporated in
the Cayman Islands as an Exempted Company having its registered office at the
Huntlaw Building, P.O. Box 1350, Fort Street, Georgetown, Grand Cayman, Cayman
Islands (hereinafter referred to as "ICOGC"); and
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a company in incorporated
under the laws of the State of Delaware, U.S.A., with a place of business in El
Segundo California, (hereinafter referred to as "Hughes").
WHEREAS, ICOGC desires to procure Launch Services and Management Services
in support of the twelve (12) Satellites procured under a separate but
interrelated Satellite Contract dated 03 October 1995, No. ICOO/95-1002/NR; and
WHEREAS, Hughes desires to supply Launch Services and Management Services in
accordance with the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, and intending to be legally
bound hereby, the Parties hereto agree as follows:
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ARTICLE 1 DEFINITIONS
In this Contract, unless the context otherwise requires, the following terms
shall have the meaning stated hereunder:
A "Affiliate" means, with respect to a Party, any subsidiary or holding
company (as determined by the Companies Act 1985 of Great Britain) at
any tier of such Party.
B "Associate" means any individuals or legal entities, organized under
public or private law, who shall, directly or indirectly, on behalf of
or at the direction of either Party to this Contract fulfill any of the
obligations undertaken by such Party in this Contract including, but
without limitation, the Affiliates, Subcontractors, Consultants,
employee officers, directors or agents of each of them and of each of
the Parties. For the avoidance of doubt, Hughes in its role as a
satellite supplier under the Satellite Contract shall not be deemed an
Associate of ICOGC.
C "Business Day" means a Day on which ICOGC or Hughes is open for business
excluding Saturdays, Sundays and public holidays.
D "Consultant(s)" means a person or organization identified to Hughes,
which person is retained by ICOGC to provide ICOGC with technical advice
and/or management services.
E "Contract" means this written instrument embodying the agreement between
Hughes and ICOGC, including the EXHIBITS annexed hereto and made
a part of this Contract, as may be varied in accordance with the
provisions of this Contract.
F "Contract Price" means the total amount expressed in this Contract
ARTICLE 4 CONTRACT PRICE, PAYMENT AND ADJUSTMENTS, as may be varied in
accordance with the provisions of this Contract.
G "Conversion" or "Convert" means for Delta-III and Zenit Launch Services,
the right which Hughes has to convert a Firm Launch (as defined in
EXHIBIT C or E) to an
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Optional Launch when a Firm Launch is postponed more than six (6) months
beyond the relevant Launch Semester.
H "Day" means a continuous 24-hour period commencing at 24:00 Midnight
(Greenwich Mean Time).
I "Designated Launch Site" means the launch facility provided, and used,
by the relevant Launch Service Provider.
J "Documentation" means documentation to be delivered under this Contract,
as more fully described in EXHIBIT A, STATEMENT OF WORK.
K "Effective Date of Contract (EDC)" means the last date that this
Contract was duly signed by both Parties.
L "Government Agency" means any governmental body, agency or entity,
which has jurisdiction over this Contract, the Designated Launch Sites,
the Launch Vehicles or any other facet of the Launch Services or
Management Services provided herein.
M "I-COSL" means I-CO Services Limited. I-COSL has been appointed a
Consultant and has been given authority under an agreement with ICOGC to
manage this Contract on behalf of ICOGC. All notices, instructions or
consultations which are given or engaged in by I-COSL in the performance
of its management and consultancy functions in relation to this Contract
shall be deemed, pursuant to the aforesaid agreement, to have been given
by ICOGC and shall be binding on ICOGC. Notwithstanding the foregoing,
I-COSL is not authorized to vary the terms of this Contract in any
manner whatsoever unless and to the extent that the ICOGC authorized
representative referred to in ARTICLE 24, NOTICES, advises Hughes in
writing to the contrary.
N "Intentional Ignition" means the intentional ignition of any first stage
motor of Launch Vehicle by the Launch Service Provider or, for Atlas
Launch Services, the
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point in time during the launch countdown when initiation of the gas
generator ignitor. firing command and firing of any of the gas generator
ignitors occurs.
O "Launch" means:
for Atlas Launch Services, the Intentional Ignition of the first stage
engines of the Launch Vehicle carrying the Satellite followed by either
release of the Launch Vehicle from the launcher holddown restraints or
Satellite and Launch Vehicle damage or destruction sufficient so that
both the Satellite and the Launch Vehicle are declared total losses; or
for Delta-III Launch Services, the Intentional Ignition of the first
stage solid rocket motors of the Delta III Launch Vehicle; or
for Proton Launch Services, the intentional ignition of the first stage
engines of a Launch Vehicle carrying a Satellite, followed by physical
separation of the Launch Vehicle from the ground support equipment,
unless such event constitutes a Terminated Ignition (as such term is
defined in EXHIBIT D); or
for Zenit Launch Services, the point in time when an electronic signal
is sent to command the opening of any first stage propellant valves. A
launch is deemed to have occurred even if there is a Total Failure,
Total Constructive Failure or Partial Failure of the Launch Vehicle (as
such terms are defined in EXHIBIT E);
P "Launch Date" means the single Day on which the relevant Launch
Service(s) shall be performed by the Launch Service Provider.
Q "Launch Period" means the three (3) Month period in which the relevant
Launch Service shall be performed by the Launch Service Provider. In the
case of Atlas Launch Services, the Launch Period shall be a five (5)
Month period.
R "Launch Revision Fees" means any amount payable by Hughes to a Launch
Service Provider as a consequence of the implementation, for any reason,
in accordance with
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- --------------------------------------------------------------------------------
the provisions of this Contract, of a Launch Service Provider
substitution or a Launch Service acceleration or postponement for any
Launch Service, which amount may include, but is not limited to,
termination liability values, postponement fees, liquidated damages,
and/or escalation values.
S "Launch Service Fee" means as appropriate, the relevant fee for each
Launch Service, as defined in Table 2 or Table 4 of ARTICLE 4, CONTRACT
PRICE, PAYMENT AND ADJUSTMENTS.
T "Launch Service Cost" means the fee which Hughes pays to a Launch
Service Provider to provide/perform the relevant Launch Services.
U "Launch Service(s)" means, in relation to a Satellite, the services
provided by the Launch Service Provider to integrate and Launch such
Satellite under the relevant Launch Service Agreement, including
furnishing the Launch Vehicle, launch support equipment and facilities,
as defined in EXHIBIT A, STATEMENT OF WORK, for the purpose of launching
a Satellite into the intermediate circular orbit defined in Exhibit B
(Satellite Technical Specification) of the Satellite Contract.
V "Launch Service Provide" means the organization(s) which Hughes has
contracted or will contract with to perform Launch Service(s), and shall
include, but not be limited to, those persons referred to in Table 1 of
ARTICLE 3, LAUNCH SCHEDULING.
W "Launch Service Agreement" means the contract(s) executed between Hughes
and the Launch Service Provider(s) for the provision of Launch
Service(s) in support of this Contract which shall be either: i) an
existing Longterm Launch Service Agreement executed (or for the Zenit
Launch Vehicle to be executed) between Hughes and the Launch Service
Provider(s); or ii) a unique contract specifically negotiated by Hughes
in support of this Contract.
X "Launch Slot" means the thirty (30) Day period within the Launch Period
in which relevant Launch Service(s) shall be performed by the Launch
Service Provider.
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Y "Launch Vehicle" means, in relation to a Satellite, the Launch Vehicle on
which that Satellite is scheduled to be launched or is actually launched.
Z "Longterm Launch Service Agreement" means the contract between Hughes and
certain Launch Service Provider(s) for the provision of multiple Launch
Services in support of any Hughes customer program(s).
AA "Management Services" means those services provided by Hughes that are
required to effect the provision and scheduling of the Launch Service for
each Satellite with the relevant Launch Service Provider, as defined in
EXHIBIT A, STATEMENT OF WORK.
BB "Month" means a calendar Month.
CC "Net Present Value" means the value arrived at by discounting, on a
monthly basis current and future amounts under this Contract to the
present date of calculation utilizing the Royal Bank of Scotland Base Rate
in existence on the date of calculation plus two percent (2%).
DD "Party" or "Parties" means an entity or all entities, according to the
context, which has or have signed this Contract.
EE "Satellite" means Satellite to be provided to ICOGC pursuant to the
Satellite Contract. The term "Satellite" shall be interchangeable with the
term "Spacecraft" and has the same meaning.
FF "Satellite Contract means Contract No. ICOO/95-1002/NR executed between
Hughes and ICOGC for the procurement of twelve (12) Hughes "manufactured
Satellites" for ICOGC.
GG "Statement of Work" means the Statement of Work which is incorporated
herein and made a part of this Contract and is EXHIBIT A to this Contract.
- --------------------------------------------------------------------------------
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HH "Subcontractor" means a person, firm, corporation, consultant or business
entity which has been awarded a subcontract by Hughes, to provide a
portion of the Work covered by this Contract.
II "Work" means all labor, services, acts (including tests to be performed),
items materials, articles, data, documentation, equipment matters and
things required to provide the Management Services and the Launch
Services.
The following expressions defined in the Satellite Contract shall, when used in
this Contract bear the same meanings therein, save where the context otherwise
requires:
A. "Delivery"
B. "Delivery Date"
C. "ICO Program"
D. "Launch Attempt"
The Article and Paragraph headings are for convenience of reference only and
shall not be considered in interpreting this Contract. Where the context so
requires, words importing the masculine gender include the feminine and neuter
gender. The recitals of this Contract are descriptive only and shall not create
or affect obligations of the Parties.
- --------------------------------------------------------------------------------
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ARTICLE 2 SCOPE OF WORK
2.1 In accordance with the terms and conditions of this Contract, Hughes shall
procur Launch Services and provide Management Services in support of the
Launch and deployment of the twelve (12) Satellites procured by ICOGC
under the Satellite Contract. Hughes shall furnish and perform the Launch
Services and Management Services in accordance with the provisions of this
Contract and shall perform the Work to the extent and in the manner
specified in the following documents, which are attached hereto and made a
part of this Contract:
DOCUMENT DATE
-------- ----
EXHIBIT A - STATEMENT OF WORK 1 July 1996
EXHIBIT B - ICOGC RIGHTS AND REMEDIES FOR 1 July 1996
ATLAS LAUNCH SERVICES
EXHIBIT C - ICOGC RIGHTS AND REMEDIES FOR 1 July 1996
DELTA-III LAUNCH SERVICES
EXHIBIT D - ICOGC RIGHTS AND REMEDIES FOR 1 July 1996
PROTON LAUNCH SERVICES
EXHIBIT E - ICOGC RIGHTS AND REMEDIES FOR ZENIT 1 July 1996
LAUNCH SERVICES
EXHIBIT F - MILESTONE PAYMENT PLAN 1 July 1996
EXHIBIT G - ICOGC GUARANTEE 1 July 1996
EXHIBIT H - HUGHES GUARANTEE 1 July 1996
EXHIBIT I - TERMINATION LIABILITY CALCULATION 1 July 1996
2.2 In the event of any inconsistency among or between the parts of this
Contract, such inconsistency shall be resolved by giving precedence in the
order of the the parts as set forth below:
A. Contract Articles and EXHIBIT I
B. EXHIBITS B through E
C. EXHIBIT A
D. EXHIBIT F
E. EXHIBIT G and H
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ARTICLE 3 LAUNCH SCHEDULING
3.1 Launch Manifest. In accordance with the provisions of this Contract,
Hughes shall utilize the Launch Service Provider(s) and Launch Dates
specified in Table 1 below establishing the baseline Launch Services
manifest (set out as Table 1 below) on behalf of ICOGC:
TABLE 1: BASELINE LAUNCH SERVICES MANIFEST
Launch Launch Service Provider(1) Launch LTA(2) Launch Target
Vehicle Launch # Period Launch
Date(s)
- ---------------------------------------------------------------------------------------------------------------------
1 Lockheed Martin Atlas-IIAS *
Commercial Launch Services
- ---------------------------------------------------------------------------------------------------------------------
2 Lockheed-Krunichev-Energia Proton *
International
- ---------------------------------------------------------------------------------------------------------------------
3 Lockheed-Krunichev-Energia Proton *
International
- ---------------------------------------------------------------------------------------------------------------------
4 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------------
5 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------------
6 Sea Launch Limited Partnership Zenit *
- ---------------------------------------------------------------------------------------------------------------------
7 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------------
8 Sea Launch Limited Partnership Zenit *
- ---------------------------------------------------------------------------------------------------------------------
9 Lockheed-Krunichev-Energia Proton *
International
- ---------------------------------------------------------------------------------------------------------------------
10 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------------
11 Sea Launch Limited Partnership Zenit *
- ---------------------------------------------------------------------------------------------------------------------
12 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------------
1: Indicated Launch Services are provided through a Longterm Launch
Service Agreement between Hughes and the relevant Launch Service
Provider(s).
2. The referenced Launch Number (Launch #) indicates what type of Launch
Service (i.e. Firm or Option) and which Launch Service or Launch Semester
(i.e. Number 5 of 10 purchased by Hughes) shall be provided by Hughes to
I-COGC.
- --------------------------------------------------------------------------------
The procedures between Hughes and the Launch Service Providers for
determining Launch Period, Slot or Day are as set out in Exhibits B through
E as applicable (or as
- --------------------------------------------------------------------------------
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
- --------------------------------------------------------------------------------
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may be set out in any unique Launch Service Agreement). Hughes' selection of
Launch Slots or Launch Days shall be made in the best interest of the ICO
program and shall be submitted to ICOGC for approval (which shall not be
unreasonably withheld) no later than one Month prior to the finalization date of
said selection with the appropriate Launch Service Provider. If any alternate
Launch Slot or Day is counter-proposed by a Launch Service Provider in
accordance with Exhibits B trough E as applicable then Hughes' response or
acceptance shall similarly require ICOGC approval. If ICOGC disapproves said
selection, it shall notify Hughes no later than ten (10) Business Days following
notification by Hughes of the selection in order to allow time for resolution of
the disagreement between the Parties.
3.1.1 References. References to "Launch 1" in this Contract shall be references
to the Launch numbered 1 as set out in Column 1 of Table 1 and the same
references shall apply for Launches 2 through 12.
3.1.2 Prior to 05 July 1996 and without prejudice to any other rights of ICOGC
under this Contract, ICOGC shall have the right to:
(a) postpone any or all Launch Periods in TABLE 1 above by up to six (6)
months; and
(b) rearrange the order in which the Launch Vehicles referred to in TABLE 1
above are allocated to a Launch.
Such rights shall, however, be subject to:
(a) the scheduling constraints set forth in Article 3.3.3; and
(b) no Zenit Launch Service being scheduled prior to 01 November 1999.
The exercise of such rights prior to 05 July 1996 shall have no effect on
Contract or the Contract Price except for (i) any adjustments to EXHIBIT F
MILESTONE PAYMENT PLAN, and (ii) any Launch Service Fee adjustments as
- --------------------------------------------------------------------------------
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referenced in Table 4 of ARTICLE 4, PRICE, PAYMENTS AND ADJUSTMENTS, nor
shall the exercise of such rights reduce any postponement rights or
periods granted to Hughes or ICOGC under this Contract or any Launch
Service Agreement.
3.2 Launch Service Provider Changes. Prior to Launch, ICOGC may direct and
Hughes may propose a Launch Service Provider substitution as follows:
3.2.1 ICOGC Launch Service Provider Substitutions Prior To Or On 05 July
1996. Prior to or on 05 July 1996 and subject o ARTICLE 4, CONTRACT
PRICE, PAYMENT AND ADJUSTMENTS, ICOGC shall be entitled to direct
Hughes by written notice ("Substitution Notice") to substitute any
Launch Service Provider(s) from those specified in Table 1
("Original LSP") with a new Launch Service Provider ("New LSP")
solely for the purposes of maximizing reliability, schedule
confidence and/or scheduling flexibility. Such request by ICOGC
shall be based upon the schedule, technical or reliability
performance of the Launch Service Provider. Any substitution shall
be implemented as follows:
i) The Substitution Notice shall be served on Hughes prior to or
on 05 July 1996; and
ii) In the event that ICOGC directs Hughes to utilize a Launch
Service Provider which does not provide Launch Services via a
Longterm Launch Service Agreement (i.e. a unique Launch
Service Agreement) Hughes shall use all reasonable efforts to
fully negotiate unique Launch Service Agreement in support of
this Contract, which Launch Service Agreement shall be
reviewed and approved by ICOGC prior to execution by Hughes.
Hughes shall not be required to effect any substitution until
ICOGC has approved the final draft of the unique Launch
Service Agreement and such agreement has been validly executed
by all pares thereto; and
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iii) The Substitution Notice shall specify the New LSP, which shall
be a person listed in Exhibit B (Satellite Technical
Specification) of the Satellite Contract and shall identify
the Original LSP and Launch number for which the substitution
is to be effected; and
iv) Any such substitution shall only be effected in accordance
with ARTICLE 3.3.3; and
v) Hughes shall bear any and all Launch Revision Fees arising as
a result of effecting such substitution; and
vi) Subject to paragraph "iv)" above, Hughes shall effect the
substitution of the Original LSP for the new LSP as soon as
reasonably possible following receipt by Hughes of the
Substitution Notice.
3.2.2 ICOGC Service Provider Substitutions After 05 July 1996. After 05
July 1996 and subject to ARTICLE 4, CONTRACT PRICE, PAYMENT AND
ADJUSTMENTS, ICOGC shall be entitled to direct Hughes by
Substitution Notice to substitute any Original LSP with a New LSP
for any reason. Any Substitution shall be implemented follows:
i) The Substitution Notice shall be served on Hughes after 05
July 1996 and prior to Launch; and
ii) In the event that ICOGC directs Hughes to utilize a Launch
Service Provider which does not provide Launch Services via a
Longterm Launch Service Agreement (i.e. unique Launch Service
Agreement) Hughes shall use all reasonable efforts to fully
negotiate a unique Launch Service Agreement in support of this
Contract, which Launch Service Agreement shall be reviewed and
approved by ICOGC prior to execution by Hughes. Hughes shall
not be required to effect any substitution until ICOGC has
approved the final draft
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of the unique Launch Service Agreement and such agreement has
been validly executed by all parties thereto; and
iii) The Substitution Notice shall specify the New LSP, which shall
be a person listed in Exhibit B (Satellite Technical
Specification) of the Satellite Contract and shall identify
the Original LSP and Launch number for which the substitution
is to be effected; and
iv) Any such substitution shall only be effected in accordance
with ARTICLE 3.3.3; and
v) ICOGC shall bear any and all Launch Revision Fees arising
as a result of effecting a substitution; and
vi) Subject to paragraph "iv)" above, Hughes shall effect the
substitution of the Original LSP for the New LSP as soon as
reasonably possible following receipt by Hughes of the
Substitution Notice.
3.2.3 ICOGC Launch Service Provider Changes Due to Zenit Launch Services.
Launch Services scheduled to be provided by Sea Launch Limited
Partnership ("Sea Launch") for Launch on a Zenit Launch Vehicle
(without prejudice to ICOGC's right to substitute Launch Service
Providers in accordance with ARTICLE 3.2.1 and 3.2.2 above) are
scheduled subject to the following conditions ("Conditions");
a) No Launch Service herein shall occur on the first or second
launch of the Zenit Launch Vehicle by Sea Launch; and
b) Hughes having entered into a Longterm Launch Service Agreement
by 05 June 1996 with Sea Launch which Hughes determines
supports this Contract, the latest draft of which forms the
basis of EXHIBIT E, ICOGC RIGHTS AND REMEDIES FOR ZENIT LAUNCH
SERVICES.
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Hughes shall notify ICOGC of such determination within thirty
(30) Days of entering into such Launch Services Agreement; and
c) Sea Launch having successfully completed all development and
integration activities to validate the Sea Launch system and
having performed at least one (1) successful launch six (6)
months prior to the Launch Semester for a relevant Zenit
Launch Service for ICOGC; and
d) For Launch 6, the first launch of a Zenit Launch Vehicle by
Sea Launch being scheduled by 01 November 1997 to occur prior
to or on 31 December 1998; and
e) For Launches 89 and 11, the first launch of a Zenit Launch
Vehicle by Sea Launch has not occurred by 01 March 1998 and is
not scheduled 01 March 1998 to occur prior to or on 30 June
1999.
In relation to each of Launches 6, 89 and 11, in the event that any
of the conditions are not satisfied by the dates set out above,
ICOGC shall be entitled to serve a Substitution Notice in accordance
with ARTICLE 3.2.1 above (which ARTICLE shall apply hereto mutatis
mutandis) for the relevant Launch:
3.2.4 Hughes Launch Service Provider Substitutions, In the performance of
its Management Services, Hughes may propose to ICOGC a substitution
to a Launch Service Provider. Any proposal by Hughes shall, as a
minimum, identify the relevant Launch Service(s), explain the
rationale for substituting the Launch Service Provider(s), identify
the proposed Launch Service Provider, and quantify the price and
payment schedule impact. Upon receipt of such proposal, ICOGC shall
notify Hughes whether the submitted Launch Service Provider
substitution proposal is accepted or rejected. Such notice period
shall be thirty (30) Days or such shorter period of time as required
under
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the length of that shorter period. If ICOGC elects to accept such
proposal, the provisions of ARTICLE 4, CONTRACT PRICE, PAYMENT, AND
ADJUSTMENTS, shall apply and ICOGC shall be solely responsible for
any Launch Revision Fees and other fees and costs charged by the
Launch Service Provider and specified in the accepted proposal. At
no point in time may Hughes substitute a Launch Service Provider
without the express written consent of ICOGC.
3.2.5 Payments. If any substitution in ARTICLES 3.2.1, 3.2.2, 3.2.3 or
3.2.4 above results in ICOGC having paid more under EXHIBIT F,
MILESTONE PAYMENT PLAN, than it would otherwise have paid had that
substitution not occurred, at ICOGC's written direction, Hughes
shall either (i) reimburse any excess amount to ICOGC in accordance
with ARTICLE 4.8 within (a) fifteen (15) Days or (b) within five (5)
Business Days from receipt of the applicable amount from the Launch
Service Provider, whichever is later, or (ii) retain such amount and
credit the amount against subsequent milestone payments specified in
EXHIBIT F, MILESTONE PAYMENT PLAN, in sequence until such amount has
been fully credited against such milestone payments.
3.3 Launch Schedule Adjustments. Either Party may, at any time prior to
Launch, request to accelerate or postpone any Launch Period specified in
Table 1, or the relevant Launch Slot or Launch Date, as applicable, as
provided below:
3.3.1 Any request or proposal to accelerate or postpone any Launch Service
by either Party under this Paragraph 3.3.1 shall be submitted and
negotiated in accordance with ARTICLE 22.3, and a subject to the
relevant rights and obligations specified in this Contract and
EXHIBITS B through E, as applicable, and the scheduling constraints
specified in ARTICLE 3.3.3 below. ICOGC shall be solely responsible
for any Launch Revision fees associated with any Launch Service
acceleration or postponement requested by either Party except for
those Launch Revision Fees which are based solely on the late
Delivery by Hughes of the relevant Satellite or other associated
deliverables [Copy Missing]
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Contract, no Launch Service Provider substitution(s) and/or Launch
Service accelerations or postponements shall be effected unless they
shall be effected within and in accordance with the following
scheduling constraints:
a) EXHIBITS B through E, as applicable; and
b) ICOGC may not utilize more than six (6) Launch Services under
any single Longterm Launch Service Agreement without the prior
written agreement of Hughes, which agreement shall not be
unreasonably withheld; and,
c) Any constraints imposed by a Government Agency on the
provision of Launch Services by a Launch Service Provider.
On a case by case basis, Hughes agrees to use its reasonable efforts
in attempting to improve scheduling flexibility by negotiating with
the relevant Launch Service Provider(s) to minimize the effect or
existence of constraints specified above.
3.3.4 Hughes Mitigation. If ICOGC directs (or otherwise requires) Hughes
to pursue course of action or to utilize the services of a specific
Launch Service Provider, in circumstances where Hughes would be
liable for Launch Revision Fees or for a Launch Service Fee, when
Hughes may otherwise be able to implement an alternate course of
action or procure/schedule alternate Launch Services which meet the
requirements of this Contract at a lesser amount of Launch Revision
Fees or a lower Launch Service Fee, and where such alternative
course of action or Launch Services are supportive of the overall
schedule and other requirements of this Contract, then ICOGC shall
solely bear any difference between (i) the course of action or
Launch Service Provider selection required by ICOGC and (ii) the
amount of Launch Revision Fees and/or the Launch Service Fee
associated with the Hughes alternate course of action or Launch
Service Provider selection. The Parties
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agree to consult with one another in order to minimize such costs,
subject to ICOGC's schedule and other requirements as specified in
this Contract.
3.4 Launch Service Provider Postponements. If a Launch Service Provider
notifies Hughes that any Launch Service shall be postponed, Hughes shall
immediately notify ICOGC of such postponement in accordance with ARTICLE
24, NOTICES. Hughes shall ascertain the nature and extent of the
postponement and consult with ICOGC to determine and implement a course of
action with the purpose of mitigating any schedule or cost impacts
resultant from the relevant Launch Services postponement. In the event that
the course of action dictated by ICOGC when implemented results in any
Launch Revision Fees, ICOGC shall be solely responsible for the payment of
such Launch Revision Fees.
3.5 Liquidated Damages.
3.5.1 For those Launch Service Providers defined in the Table below, ICOGC
may elect, no later than 05 July 1996, to impose on Hughes the
requirement to pay liquidated damages for the postponement of any
Launch Service provided by the Launch Service Provider. Such election
by ICOGC shall be submitted to Hughes in writing and shall be at no
additional cost to ICOGC. Upon election and notification by ICOGC,
Hughes shall develop and submit to ICOGC a liquidated damages
schedule (the "LD Schedule") which shall be consistent with the ICOGC
requirement but based upon the amounts and constraints defined in the
table below and define the liquidated damages date, grace period (if
applicable), and daily liquidated damages amount.
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LAUNCH
SERVICE
PROVIDER LIQUIDATED DAMAGES VALUES CONSTRAINTS
- ----------------------------------------------------------------------------------------------------
Proton Liquidated damages for Proton Launch Liquidated damages shall not apply to
Services shall be * per day. the first * days of Proton
postponement. Liquidated damages
The cumulative maximum liquidated shall not apply to any delay(s) to the
damages per Launch Service shall not applicable Launch Service(s) caused due
exceed * of the to a postponement by Hughes or ICOGC.
relevant Launch Service Cost.
- ----------------------------------------------------------------------------------------------------
Zenit Liquidated Damages for Zenit Launch Liquidated damages shall not apply to
Services shall be * per day. the first * days of Sea Launch
postponement. Liquidated damages
Liquidated damages for Zenit Launch shall not apply to i) any Sea Launch
Services shall not exceed * postponement based upon an event of
of the applicable Launch Service Cost. force majeure, as defined in EXHIBIT E;
ii) any postponement required due to
Sea Launch's obligation to provide a
replacement launch for any Sea Launch
customer, and iii) any delay(s) to the
applicable Launch Service(s) caused due
to a postponement by Hughes or ICOGC.
- ----------------------------------------------------------------------------------------------------
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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3.5.2. Other Launch Service Providers. For any Launch Service(s) provided
by a Launch Service Provider(s) other than those defined in
Paragraph 3.5.1 above, upon receipt of a written request from
ICOGC, Hughes agrees to enter into good faith negotiations with
the applicable Launch Service Provider(s) to attempt to include
liquidated damages into the relevant Launch Service Agreement. Such
notification from ICOGC must be submitted to Hughes (i) no later
than 05 July 1996, or (ii) prior to definitization of the unique
Launch Service Agreement, whichever is later. ICOGC shall be solely
liable for any increase in any Launch Service Cost resulting from
the inclusion of any liquidated damages into the relevant Launch
Service Agreement.
3.5.3 Payment. Payment by Hughes to ICOGC of any liquidated damages
value shall occur within five (5) business days after Hughes
receives the corresponding liquidated damages payment from the
relevant Launch Service Provider on which Hughes shall have imposed
the same level of liquidated damages provided that Hughes shall
never be under any obligation to ICOGC to effect payment of any
liquidated damages for an amount greater than that received from
the relevant Launch Service Provider.
3.5.4 ICOGC Postponement Fees. If ICOGC implements the liquidated damages
defined in Paragraph 3.5.1 for any Zenit Launch Service, ICOGC shall
be subject to postponement fees for any Launch Service postponement
requested or directed by ICOGC. ICOGC postponement fees shall be:
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LAUNCH
SERVICE
PROVIDER ICOGC POSTPONEMENT FEE VALUES CONSTRAINTS
- --------------------------------------------------------------------------------
Zenit ICOGC Postponement Fees for Zenit Liquidated damages shall not
Launch Services shall be * per apply to the first * days
day. of ICOGC postponement.
Liquidated damages for Zenit Launch
Services shall not exceed * of
the applicable Launch Service Cost.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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ARTICLE 4 CONTRACT PRICE, PAYMENT AND ADJUSTMENTS
4.1 Contract Price. In consideration for i) the Launch Services referred to in
Table 1, and ii) the Management Services specified herein, (subject to
ARTICLE 4.2) the Contract Price is a firm fixed price of Nine Hundred
Thirteen Million Three Hundred Ninety Two Thousand Two Hundred Seventy Two
U.S. Dollars (US$913,392,272.00), which includes all taxes and duties and
fees required by Hughes to provide the Management Services and Launch
Services. ICOGC shall pay the Contract Price to Hughes in accordance with
Table 3 below, which reflects the payment profiles for each of the relevant
Launch Service Provider(s) and is presented in EXHIBIT F, MILESTONE PAYMENT
SCHEDULE. The baseline Contract Price shall be apportioned as follows:
TABLE 2 - BASELINE CONTRACT PRICE
UNIT PRICE LINE ITEM TOTAL
ITEM DESCRIPTION (US DOLLARS) (US DOLLARS)
- --------------------------------------------------------------------------------
1 LAUNCH SERVICE FEE:
1(a) (1) Atlas II-AS Launch Services * *
1(b) (5) Delta-III Launch Services * *
1(c) (3) Proton Launch Services * *
1(d) (3) Zenit Launch Services * *
2 MANAGEMENT SERVICES FEE * *
- --------------------------------------------------------------------------------
TOTAL CONTRACT PRICE $913,392,272.00(1)
- --------------
(1) Price includes any additional cost, if any, associated with an extended
mission kit for the first Atlas II-AS Launch Service.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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TABLE 3 - BASELINE PAYMENT SCHEDULE
ATLAS DELTA-III PROTON ZENIT
- -----------------------------------------------------------------------
05 JULY 96 * * *
L-27(1) *
L-24 *
L-21 *
L-18 * * * *
L-15 * * *
L-12 * * * *
L-9 * * * *
L-6 * * *
L-3 *
L-1 * * *
L+30 DAYS * * * *
- --------------------------------------------------------------------------------
NOTES:
1: "L" = the first Day of the Launch Period, Launch Slot, or Launch Date,
whichever is applicable as of the date of the milestone payment.
2: L-24 and Launch Period selection
3: L-12 and Launch Slot selection
4: L-6 and Launch Date selection
5: L-15 and PDR complete
- --------------------------------------------------------------------------------
4.2 Launch Service Provider Substitutions. The Contract Price stated in
ARTICLE 4.1 above assumes that the Launch Service(s) shall be performed by
the Launch Service Provider(s) specified in Table 1 of ARTICLE 3.1 herein.
If any Launch Service Provider is substituted in accordance with ARTICLE
3.2 herein, the Contract Price and the Baseline Payment Schedule stated in
ARTICLE 4.1 above shall be revised to take into account the relevant
Launch Service Fee and payment schedule defined in Table 4 and Table 5
below as they shall apply for the substituted Launch Services:
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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TABLE 4 - LAUNCH SERVICE PROVIDER SUBSTITUTIONS
LAUNCH LAUNCH SERVICE FEE
VEHICLE ($USD)
- -------- -------------------
ATLAS-IIAS * per Month for every Month that the relevant Launch Service
is scheduled to occur beyond 01 November 1998. Price will also be
increased to reflect any additional delta cost associated with an
extended mission kit, but such potential delta cost shall not
exceed the amount, if any, paid by Hughes for such kit on the
first Atlas IIAS Launch Service. Pricing is valued for Launch
Services exercised prior to 01 January 1997, unless the Atlas
Launch Services exercised prior to 01 January 1997, unless the
Atlas Launch Service Provider agrees to extend such date.
Proton * increased at an annual rate of * for any Launch beyond
01 July 2000. Pricing is valid for Launch Services provided
through 31 December 2001.
Delta-III * increased at an annual rate of * for any Launch
exercised after 01 January 2002. Such escalation shall be applied
for the period beginning on 01 January 2002 and ending on the
Launch exercise date. Pricing is valid for Launch Services
provided through 31 December 2005.
Zenit * for each Month that the first Day of Launch Period is
after 01 July 2000. Pricing is valid for Launch Services provided
through 31 December 2005.
Note: Escalation calculations defined within this Table 4 for the Proton,
Delta-III and Zenit Launch Vehicles shall not apply to any Launch which
is scheduled at the date of Substitution to occur on those Launch
Vehicles prior to 31 December 2000. In the event that any Launch is
scheduled at the date of Substitution to occur on or after 01 January
2001, the escalation calculations/amounts defined above shall apply as
specified above.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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TABLE 5 - SUBSTITUTION PAYMENT SCHEDULES
--------------------------------------------------------
ATLAS DELTA-III PROTON ZENIT
------------------------------------------------------------------------
Option * * *
Exercise(2)
------------------------------------------------------------------------
L-24(1) * *
------------------------------------------------------------------------
L-21 *
------------------------------------------------------------------------
L-18 * * * *
------------------------------------------------------------------------
L-15 * * *
------------------------------------------------------------------------
L-12 * * * *
------------------------------------------------------------------------
L-9 * * * *
------------------------------------------------------------------------
L-6 * * *
------------------------------------------------------------------------
L-3 *
------------------------------------------------------------------------
L-1 * * *
------------------------------------------------------------------------
L+30 Days * * * *
========================================================================
Notes:
1: "L" = the first Day of the Launch Period, Launch Slot, or Launch Date,
whichever is applicable as of the date of the milestone payment.
2: Option Exercise = upon direction to Hughes by ICOGC to substitute a
Launch Service Provider and notification to the Launch Service
Provider of Option Exercise
3: L-24 and Launch Period selection
4: L-12 and Launch Slot selection
5: L-6 and Launch Date selection
6: L-15 and PDR complete
------------------------------------------------------------------------
4.3 ILS Launch Service Fee Reduction. If Hughes is able to negotiate and obtain
a reduced Launch Service Cost (in absolute value or on a Net Present Value
basis) after the Effective Date of this Contract from (and for the Launch
Service(s) relating to) the Atlas and/or Proton Launch Service Provider,
then the Contract Price shall be reduced by an amount equal to * of the
net difference between the initial Launch Service Cost to Hughes and the
subsequent lower Launch Service Cost negotiated by Hughes multiplied by one
(1) plus the General and Administrative fee of one percent (i.e. 1.01). The
Contract Price reduction shall only apply to those Launch Services which
are the subject of any such agreement with the Atlas and/or Proton
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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Launch Service Provider. The Contract Price reduction value may be
illustrated in formula format as follows:
Net Contract Price Reduction = *
If ICOGC should question any amount calculated under this Paragraph 4.3,
subject to the execution of a non-disclosure agreement in a form
reasonably acceptable to Hughes between all relevant parties, Hughes
shall provide access to a third party auditor acceptable to both Parties,
which third party auditor may review the relevant cost documentation and
certify to ICOGC as to the validity of the Hughes reduction.
4.4 Alternate Launch Service Provider(s). If, at any time, ICOGC directs Hughes
to utilize a Launch Service Provider which does not have a Longterm Launch
Service Agreement with Hughes which provides Launch Services for a
Satellite as of the date of the ICOGC request, the Contract Price stated in
ARTICLE 4.1 above shall be revised to reflect the inclusion of i) the
actual Launch Service Cost, inclusive of any applicable taxes, duties, or
fees charged by the alternate Launch Service Provider; and ii) a fee equal
to * of the Launch Service Cost. In addition, the payment schedule
specified in EXHIBIT F, MILESTONE PAYMENT PLAN, shall be revised to reflect
the milestone/payment schedule included in the relevant Launch Service
Agreement. The * fee specified above shall be payable on a per Launch
Service basis as follows: i) * shall be prorated over all of the
applicable payments; and ii) * (2%) shall be payable upon Launch.
4.5 Payments. All payments specified in this ARTICLE 4, CONTRACT PRICE, PAYMENT
AND ADJUSTMENTS, shall be made by ICOGC within fifteen (15) Days of receipt
of a valid invoice and (i) for calendar based milestones, the occurrence of
the applicable milestone, or (ii) for performance milestones, additionally
upon certification from Hughes that the particular milestone event has been
completed, whichever is
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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to payment shall make a written demand for, or shall submit an invoice if
so requested by the payor, after such entitlement becomes established, and
the payor shall make payment within fifteen (15) Days after receipt of a
valid written demand or valid invoice unless the Contract specifies to the
contrary.
Notwithstanding any other term in this Contract, in no event shall Hughes
be liable to ICOGC for any payment which originates from a Launch Service
Provider (e.g. Launch Revision Fees, liquidated damages, or refund of
payments for a terminated Launch Service) until Hughes has received the
corresponding payment from the relevant Launch Service Provider.
Any invoices will separately identify any applicable taxes and duties and
shall be addressed to ICOGC at the following address:
ICO Global Communications (Operations) Limited
Huntlaw Building
P.O. Box 1350
Fort Street
Georgetown, Grand Cayman
Cayman Islands
but submitted both via an internationally recognized air courier and via
telefax to:
I-CO Services Limited
1 Queen Caroline Street
Hammersmith, London W6 9BN
United Kingdom
Attention: Contract Administrator (Space Segment)
Fax #44-181-600-1199
and with a copy given by hand to an authorized on-site representative of
ICOGC at the Hughes' facility.
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4.6 Payment Postponements. If any postponement of a Launch Service results in
the postponement or delay of any payment(s) under a Launch Service
Agreement for the postponed Launch Service, the payment schedule specified
in EXHIBIT F, MILESTONE PAYMENT PLAN, shall be revised to reflect such
delayed payment(s).
4.7 Payment Dispute. No dispute with respect to the payment of any amount under
this Contract shall relieve the disputing Party of its obligation to pay
all other amounts due and owing under this Contract. All disputed amounts,
unless otherwise specified in the Contract, shall be paid into an
interest-bearing escrow account at Bank of America, Concord, California,
Account No. (to be established later), within fifteen (15) Days after
receipt of invoice. After the dispute is settled, the Party entitled to the
amount or part thereof in escrow shall receive such amount together with
all interest thereon and the costs and fees associated with such escrow
account shall be paid by each Party in inverse proportion to the amounts
received by each Party.
4.8 Telegraphic Transfer. Amounts payable hereunder are to be remitted by
telegraphic transfer to a bank to be advised in writing by Hughes or
ICOGC, as the case may be.
4.9 Guarantee. Within 15 Days of EDC, both Parties shall provide a parent
company guarantee of their obligations substantially in the form set forth
in EXHIBIT H, HUGHES GUARANTEE, and EXHIBIT G, ICOGC GUARANTEE.
4.10 Letter of Credit. No later than 05 July 1996, ICOGC shall establish an
irrevocable Letter of Credit in the amount of * . Such irrevocable
Letter of Credit shall be issued by a bank of good international reputation
of ICOGC's choice (issuing bank) and in a format reasonably acceptable to
Hughes. The irrevocable Letter of Credit shall be issued in favor of Hughes
and shall be valid until the last payment has been made as per EXHIBIT F,
MILESTONE PAYMENT PLAN as such plan may be varied in accordance with the
provisions of this Contract. The aforesaid Letter of Credit amount shall be
adjusted to reflect the values listed below by the dates specified:
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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- --------------------------------------------------------------------------------
Date Revised Letter of Credit Amount
---------------------------------------------------
*
ICOGC shall notify Hughes within five (5) Days of any recommended adjustments
to the amount of the Letter of Credit.
In the event ICOGC has not made a payment for a milestone within fifteen (15)
Days after the receipt of Hughes' invoice and milestone completion
certification when pursuant to ARTICLE 4.5 it was obligated to do so, the
irrevocable Letter of Credit shall allow Hughes to immediately draw down an
amount which Hughes certifies as the outstanding amount payable for that
milestone.
ICOGC will be responsible for all bank charges, expenses, and commissions
relating to the irrevocable Letter of Credit required to be issued hereunder on
Hughes' behalf save as may be incurred as a result of a delay in the last
milestone payment beyond 01 January 2001 caused by a late Delivery by Hughes of
the relevant Satellite or the associated deliverables beyond their respective
Delivery Dates (where that
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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is solely caused by Hughes) or due to a material breach by Hughes of this
Agreement in which case such bank charges (etc.) shall be borne by Hughes.
Hughes shall notify ICOGC in writing if any Launch Service Provider
substitution or Launch Service(s) postponement (as specified in ARTICLE 3,
LAUNCH SCHEDULING) necessitates a revision in the adjustment dates and/or
values (increase/decrease or acceleration/postponement) defined above. ICOGC
shall revise the Letter of Credit as required within thirty (30) days of
receipt of such written notice, or such later period as may be agreed between
the Parties as reasonable under the circumstances. The Parties agree to
regularly (at least once every six (6) Months) review the level of the Letter
of Credit with a view to adjusting the Letter of Credit to cover the forecasted
payment values.
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ARTICLE 5 MANIFEST MANAGEMENT
5.1 Launch Service Provider Cessation. If any Launch Service Provider
utilized hereunder declares that it shall, or does, cease operations for
a period equal to or greater than six (6) Months or it is anticipated
that it will do so ("LSP Cessation"), Hughes will promptly confer with
ICOGC to determine the feasibility of utilizing alternate launch
opportunities (i.e., postponing or accelerating currently scheduled
Launch Services) within the ICOGC launch services manifest (specified in
Table 1 of ARTICLE 3, LAUNCH SCHEDULING, as adjusted by ARTICLE 3,
LAUNCH SCHEDULING) and/or transferring any portion of the current Launch
Services to alternate Launch Service Providers.
5.2 Revised Launch Opportunities. If after such review of the
proposed/possible options presented by Hughes, ICOGC requests Hughes to
pursue revised launch opportunity(ies), then Hughes shall attempt to
create an equitable rescheduling amongst its satellite customers, giving
priority based upon the launch manifests in existence as of the date of
the LSP Cessation but taking into consideration limitations or technical
compatibility with multiple launch vehicles of other Hughes' satellite
customers similarly affected. In any event, ICOGC shall be responsible
for (i) any Launch Revision Fees and (ii) any amounts specified in
ARTICLE 4, CONTRACT PRICE, PAYMENT AND ADJUSTMENTS, associated with any
rescheduling performed under this ARTICLE 5.
5.3 Rescheduling Rights. Hughes may however, reschedule the affected ICOGC
Launch Service to a position other than that reflected in the launch
manifests in existence as of the date of the LSP Cessation to provide
another Hughes satellite customer(s) an earlier Launch than the affected
ICOGC Launch provided that such rescheduling does not cause a
significant delay (not to exceed three (3) months) to ICOGC relative to
the other Hughes satellite customer(s) being provided such earlier
Launch Service(s). In addition, the price (when evaluated on a Net
Present Value basis) of such later launch opportunity to ICOGC shall not
be greater than that of ICOGC original launch opportunity.
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ARTICLE 6 RESERVED
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ARTICLE 7 PERMITS AND LICENSES: GOVERNMENT APPROVALS
7.1 Hughes Permits, Licenses and Approvals. Hughes shall, at its own expense,
secure all Government permits, licenses, approvals and consents as may be
required for the performance of the Management Services under this
Contract. Hughes shall also secure, via the relevant Launch Service
Provider, all Government permits, licenses, approvals and consents
required for the provision of each relevant Launch Service(s). Hughes
shall perform the Work in accordance of all such relevant permits and
licenses.
7.2 Technical Data. Notwithstanding ARTICLE 7.1 or any other provision of this
Contract, the Parties understand and agree that certain restrictions are
placed on access to Hughes' plant and the use of technical data delivered
under this Contract with relation to the approvals Hughes and certain
Launch Service Providers must obtain from the U.S. Government. As a
result, the Parties agree that such access and the actual delivery of any
technical data will be under a separate agreement which shall require
prior U.S. Government approval. Hughes via the Launch Service Provider, as
applicable, shall prepare said agreement and, in consultation with ICOGC,
shall request U.S. Government approval. Request for U.S. Government
approvals shall be sufficiently comprehensive to allow Hughes or the
relevant Launch Service Provider to fulfill all of its obligations
hereunder including but not limited to the rights of access and inspection
granted to ICOGC and its Consultants under this Contract.
7.3 Documentation. If Documentation furnished under this Contract is
authorized by the U.S. Government for export only to ICOGC, the
Documentation may not be resold, diverted, transferred, trans-shipped or
otherwise be disposed of in any other country, either in itw original
form or after being incorporated through and intermediate process into
other end items without the prior written approval of the U.S. Government.
Additionally, transferring registration or control to any other person or
business entity of the Documentation furnished under this Contract is
considered an export and as such also requires prior written approval
from the U.S. Government. ICOGC
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represents and warrants that the ultimate end use of the documentation is
to support the provision of telecommunications services.
7.4 ICOGC Permits and Licenses. ICOGC shall, at its own expense, secure all
Government permits and licenses as may be required for the performance of
its obligations under this Contract. ICOGC shall be responsible for
obtaining the registration of any and all Satellites launched hereunder. In
addition, ICOGC shall be responsible for obtaining any license required for
radio telecommunication with any and all Satellites after separation from
the Launch Vehicle.
7.5 Survivability. The obligations contained in this ARTICLE 7 shall survive
expiration or termination of this Contract for whatever cause.
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ARTICLE 8 LAUNCH REVIEWS
8.1 Launch Reviews. Hughes shall ensure that ICOGC is afforded the opportunity
to attend programmatic reviews held by the various Launch Service
Provider(s). Such reviews shall include but not be limited to, preliminary
design reviews, critical design reviews, orbital mission reviews, and
launch readiness reviews. Hughes shall provide ICOGC representatives with
fifteen (15) Business Days notice of the pending review. Attendance at
these reviews by ICOGC representatives is not mandatory and in no event
shall the absence of an ICOGC representative postpone or delay any review.
8.2 ICOGC Direction. Based upon the information presented by the Launch Service
Provider in the applicable programmatic review(s), ICOGC may direct Hughes
to halt or postpone the Launch Service to which such review applied or
related if ICOGC believes that the Launch Service Provider has failed, or
shall fail, in some material degree to provide the required Launch
Services. If ICOGC directs to halt or postpone any Launch Service(s), ICOGC
shall, by notice in writing to Hughes provide reasonable details of the
Launch Service(s) affected, the rationale for postponement and a
proposed/acceptable resolution for the issue. ICOGC shall be solely
responsible for, and indemnify and hold harmless Hughes from any Launch
Revision Fees or other amounts charged by the Launch Service Provider for
any Launch Service halted or postponed by Hughes at ICOGC's direction in
accordance with this ARTICLE 8.2.
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ARTICLE 9 TITLE
9.1 Launch Services. In no event shall either Party take or receive title to
any portion to any Launch Vehicle utilized in the Launch Services procured
by this Contract.
9.2 Documentation. Title and risk of loss to all Documentation shall pass to
ICOGC at the time of delivery, save that intellectual property rights in
Documentation shall be dealt with in accordance with the provisions of
ARTICLE 18, DATA RIGHTS.
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ARTICLE 10 FORCE MAJEURE
10.1 Effect of Force Majeure. Notwithstanding any other provisions of this
Contract, in the event Hughes and its Associates or Subcontractors
("affected Party") are delayed in the performance of this Contract by an
event of Force Majeure, as defined in ARTICLES 10.2, 10.3, and 10.5 below,
there shall be an equitable adjustment to the time for the performance of
the affected obligations under this Contract provided that Hughes informs
ICOGC immediately of the occurrence of the event giving rise to Force
Majeure and provides ICOGC within seven (7) Business Days of the date of
such notice with a detailed description of the performance affected by
such event as well as the plans for minimizing the effects of such event
upon the performance of Hughes's obligations under the Contract. In all
cases, Hughes shall use reasonable efforts to avoid or minimize such
delay.
10.2 Management Services. For purposes of this Contract, "Force Majeure" for
Management Services shall mean an act of God, or of the public enemy,
fire, flood, epidemic, quarantine restriction, or lockout, strike,
walkout, (other than those solely affecting Hughes' or its Associates'
workforce) or freight embargo, acts of Government, including but not
limited to the Government of the United States, (including the refusal,
suspension, withdrawal, or non-renewal of export or import licenses
essential to the performance of the Contract not caused by Hughes or its
Associates) whether in its sovereign or contractual capacity, or any other
event which is beyond the reasonable control and without the fault or
negligence of Hughes and its Associates performing any part of the Work.
10.3 Launch Services. For purposes of this Contract, "Force Majeure" for Launch
Service Provider(s) shall mean those force majeure or excusable delay
events and the consequences thereof defined in EXHIBITS B through E, as
applicable.
10.4 ICOGC Payments. Notwithstanding the above, this ARTICLE is not applicable
to the payment obligations of ICOGC and as such no force majeure events or
excusable delays shall be provided in that instance.
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10.5 Satellite Contract Force Majeure. For the avoidance of doubt, in the event
that any Launch Service is delayed due to the late Delivery of a Satellite
or any associated deliverables, and such late Delivery is caused by an
Excusable Delay (as defined in Article 10 of the Satellite Contract), then
such delay of the Launch Service(s) shall constitute an event of Force
Majeure under this Contract.
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ARTICLE 11 RESERVED
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ARTICLE 12 ACCESS TO WORK IN PROGRESS AND DATA
12.1 Hughes Facilities. For those facilities solely owned and/or operated
by Hughes, Hughes shall provide ICOGC and its Consultant(s) reasonable
access to all Work being performed under this Contract, at reasonable
times as mutually agreed upon by the Parties during the period of this
Contract, provided that such access does not unreasonably interfere
with such Work and access to Work is coordinated with the Hughes
Program Manager or designated alternative(s). Such access shall be in
compliance with Hughes' security requirements and United States law.
Hughes may, at its reasonable discretion, deny access to persons who
are employed by or affiliated with a company manufacturing satellites
or major subsystems for satellites or providing launch services.
12.2 Disclosure. ICOGC and/or its Consultant(s) visiting Hughes facilities
(a) will abide by Hughes' security regulations and applicable U.S.
Government regulations; (b) will not use or disclose to a third party
any information received in connection with the access provided
hereunder and will use such information only in the performance of
this Contract, whether or not such information is marked or otherwise
identified as proprietary, save as provided in ARTICLE 21,
CONFIDENTIALITY.
12.3 I-COSL. For purposes of access, I-COSL shall be considered the same as
ICOGC and the provisions of this ARTICLE 12 shall apply mutatis
mutandis to I-COSL and its Consultants.
12.4 Launch Service Provider Facilities. Notwithstanding the foregoing
provisions of this ARTICLE 12, access by ICOGC and/or its
Consultant(s) to any Launch Service Provider facility, including the
Designated Launch Site, shall be governed by the terms defined in
EXHIBITS B through E, as applicable.
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ARTICLE 13 INDEMNIFICATION
13.1 Each Party ("the Indemnifying Party") shall indemnify and hold harmless
the other Party ("the Indemnified Party") and its Associates (or any of
them), from any loss, damage, liability or expense suffered or incurred by
any such person resulting from damage to all property and injury,
including death, arising out of, or based upon, any event or circumstance
occurring prior to arrival at the Designated Launch Site to the extent
caused by a negligent act or omission of the Indemnifying Party or its
Associates in the performance of the Work and at the Indemnifying Party's
expense shall defend any suits or other proceedings brought against the
Indemnified Party and/or its Associates (or any of them), on account
thereof, and satisfy all judgments which may be incurred by or rendered
against them (or any of them) in connection therewith.
13.2 Notwithstanding ARTICLE 13.1, each party ("the Indemnifying Party") shall
be and remain solely responsible for, and shall indemnify and hold
harmless the other Party ("the Indemnified Party") from and against any
loss, damage, liability or expense suffered or incurred by the
indemnifying Party resulting from loss or damage to the Indemnifying
Party's property and/or injury including death, affecting the Indemnifying
Party's personnel whilst on or within the Indemnifying Party's premises or
on or within the premises of the Indemnified Party; provided however that
the first One Hundred Thousand U.S. Dollars (US $100,00) of any such loss,
damage, liability or expense shall be borne by each Party to the extent
that it is liable under ARTICLE 13.1.
13.3 Prior to the time that either Party or its Associates enter the
Designated Launch Site (as a precondition of such entry), each Party shall
ensure that they and their respective relevant Associates shall sign a
no-fault, no-subrogation inter-party waiver of liability consistent with
that defined in the relevant Launch Service Agreement.
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13.4 In the event that either ICOGC or Hughes fails to obtain the aforesaid
inter-party waiver of liability from their respective Associates, then
ICOGC and Hughes shall indemnify and hold each other harmless from claims
brought by the other Party or its Associates, for damage to any such
persons' property or injury to, or death of, such persons' employees in
connection with any launch operations in or around the Designated Launch
Site.
13.5 Notwithstanding any other provision of this Contract, but without
prejudice to any indemnities or insurance coverage as may be provided by
Launch Service Providers, ICOGC shall indemnify and hold harmless Hughes
and its Associates from any liabilities, losses and damages, including but
not limited to those based on negligence, including any costs, expenses
and damages whatsoever incurred by Hughes in defending, or assisting ICOGC
in its defense, against any and all third party claims, including but not
limited to, ICOGC's customer(s) or an agency of any Government with whom
ICOGC shall have any obligation related to the Satellites arising after
the launch attempt of a Satellite, and ICOGC shall obtain waivers of
subrogation rights against Hughes and its Associates from ICOGC's
insurers, if any.
This indemnity shall not apply to Hughes or its Associates to the extent
that they make a claim against ICOGC as a direct or indirect customer of
ICOGC.
13.6 ICOGC shall defend and indemnify Hughes from any claims made by any third
party against Hughes arising from any misrepresentation by ICOGC or any of
its Affiliates to any third party in connection with the Launch Services
and Management Services.
13.7 Neither Party shall be entitled to claim to be, nor shall it be,
indemnified both under this Contract and under ARTICLE 13 of the Satellite
Contract in respect of any loss, costs, claims, damages or expenses
arising out of or in relation to the same event or circumstance.
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ARTICLE 14 WARRANTY
14.1 Launch Services. Hughes provides no warranty, either express or
implied, in relation to any Launch Service provided herein, save as
provided in this ARTICLE 14.
14.2 Management Services. Hughes warrants, in relation to the Management
Services, that all services shall be performed in a professional and
workmanlike manner consistent with generally accepted custom and
practice in the industry.
14.3 Longterm Launch Service Agreements. Hughes warrants and ICOGC has
entered into this Contract on the basis that the provisions of this
Contract including EXHIBITS B through E and EXHIBIT I are reflected by
binding and enforceable rights and remedies under the Longterm Launch
Service Agreements which Hughes has entered into (or in the case of
Zenit, which Hughes intends to enter into) with the relevant Launch
Service Providers. Hughes further warrants that insofar as any
provisions of this Contract (other than those contained in EXHIBITS B
through E) are not reflected by or are in conflict with the rights and
remedies granted to ICOGC under EXHIBITS B through E and EXHIBIT I that
Hughes has now or will obtain any rights and remedies viz-a-viz the
Launch Service Provider(s) as are necessary to fulfill the provisions of
this Contract. In addition, Hughes shall not enter into any modification
or amendment to any Longterm Launch Service Agreement which modifies
ICOGC rights as specified in this Contract including EXHIBITS B through
E and EXHIBIT I without the prior written approval of ICOGC, which
approval shall not be unreasonably withheld.
14.4 Pursuit of Rights and Remedies. Hughes warrants that it shall utilize
its reasonable efforts to initiate and pursue all rights and remedies
specified in this Contract or EXHIBITS B through E, as applicable,
including recovery or enforcement by legal or arbitral proceedings or
utilization of any existing corporate guarantee or other financial
guarantee or security.
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ARTICLE 15 RISK TO SATELLITE
15.1 Risk. The Parties are aware and agree that the use of expendable launch
vehicles to launch satellites into orbit involves a degree of risk to
the relevant satellite. By this Contact, the Parties have made a
deliberate, knowing allocation between them of that risk and ICOGC
shall solely bear the risk of loss for any Satellite launched hereunder.
15.2 Right to Destroy. The relevant Range Safety Officer or equivalent Launch
Service Provider personnel shall be authorized to destroy, without
liability or indemnity to the Launch Service Provider or Hughes, the
relevant Launch Vehicle and Satellite if such action is mandated.
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ARTICLE 16 U.S. GOVERNMENT THIRD PARTY INDEMNIFICATION
In the event that ICOGC, at its sole discretion, is not reasonably satisfied
that the U.S. Government third party indemnification coverage identified in the
Commercial Space Launch Act is afforded to ICOGC, and consequently ICOGC elects
to procure insurance in lieu of such U.S. Government third party indemnification
coverage, Hughes agrees to reimburse ICOGC for * of ICOGC direct documented
cost of such insurance not to exceed the value of Hughes' Management Services
Fee identified in ARTICLE 4.1.
Notwithstanding the above, in the event that:
1) The Commercial Space Launch Act is clarified such that ICOGC is reasonably
satisfied that it is included in such U.S. Government third party
indemnification coverage; or
2) The Commercial Space Launch Act expires or is modified such that U.S.
Government third party indemnification coverage is no longer available to
launch vehicle customers;
then Hughes shall have no obligation to reimburse ICOGC for any costs procure,
or share in the procurement of any insurance deemed necessary by ICOGC.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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ARTICLE 17 TERMINATION
17.1 ICOGC Termination. ICOGC may terminate any unperformed portion of this
Contract as specified below.
17.1.1 ICOGC Termination For Convenience. At any point in time prior
to Launch, ICOGC may direct Hughes, in writing, to terminate any
Launch Service(s) provided herein for ICOGC convenience. As of the
date specified (the "Effective Termination Date") in the written
notice of termination from ICOGC, Hughes shall take the following
actions:
1) stop the provision of Management Services under this Contract on
the Effective Termination Date and to the extent specified in the
notice of termination; and
2) terminate the appropriate Launch Service(s) on the Effective
Termination Date; and
3) settle all outstanding liabilities and all claims arising out of
such termination in accordance with the provisions of this
ARTICLE 17, TERMINATION.
17.1.1.1 Termination Liability Prior To Or On 05 July 1996. For
each Launch Service terminated by ICOGC in accordance
with Paragraph 17.1.1 above prior to or on 05 July
1996, ICOGC shall be liable to Hughes for:
(a) for each Launch Service provided via a Longterm
Launch Service Agreement, an amount of * per
terminated Launch Service; or
(b) for each Launch Service not provided via a Longterm
Launch Service Agreement, an amount resultant from the
relevant formula in CALCULATION 2, as defined in
EXHIBIT 1, TERMINATION LIABILITY CALCULATION.
* Confidential Treatment Requested and the Redacted Material has
been separately filed with the Commission.
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17.1.1.2 Termination Liability After 05 July 1996. For each Launch Service
terminated by ICOGC in accordance with Paragraph 17.1.1 above,
after 05 July 1996, ICOGC shall be liable to Hughes for an amount
resultant from the relevant formula in CALCULATION 2, as defined
in EXHIBIT I, TERMINATION LIABILITY CALCULATION.
17.1.2 ICOGC Termination For Hughes Default. Provided that ICOGC is not in
default of any term of this Contract. ICOGC may terminate, prior to Launch, any
Launch Service in the event any of the following events occur.
1) Hughes breaches a material term of (i) this Contract; or (ii) the Satellite
Contract; or (iii) a Launch Service Agreement and such breach of a
material term by Hughes results in any Launch Service(s) provided herein
being terminated for default by the relevant Launch Service Provider; or
2) Hughes shall (A) commence a voluntary case under the US Bankruptcy Code
(as now or hereafter in effect) (the "Code"); or (B) file a petition
seeking to take advantage of any other laws, domestic or foreign, relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts; or (C) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case
under the Code or other laws or such a case shall not have been dismissed
or stayed within thirty (30) days of the filing of the petition commencing
the same; or (D) apply for, or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, liquidator or the like of itself or of
a substantial part of its assets, domestic or foreign; or (E) admit in
writing its inability to pay, or generally not be paying its debts (other
than those that are the subject of a bona fide dispute) as they become
due; or (F) make a general assignment for the benefit of creditors; or (G)
Hughes or the Hughes Parent Company sells, transfers or otherwise disposes
of all or substantially all of its assets (other than for full
consideration) and as a result of the Parent Company Guarantee provided by
Hughes is prejudiced and adequate
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security, in a form reasonably acceptable to ICOGC, is not additionally
provided; or (H) take any action for the purpose of effecting any of the
foregoing; or (I) a case or other proceeding shall be commenced against
Hughes in any court of competent jurisdiction seeking (i) relief under the
Code or under any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of
Hughes or of all or any substantial part of its assets, domestic or
foreign and such case or proceeding shall continue undismissed or unstayed
for a period of thirty (30) days, or an order granting the relief request
in such case or proceeding (including, but not limited to, an order for
relief under the Code) shall be entered; or
3) If the interrelated Satellite Contract is terminated by ICOGC solely due
to a default by Hughes under the Satellite Contract.
17.1.2.1 For each Launch Service(s) terminated by ICOGC in accordance
with Paragraph 17.1.2 above, ICOGC shall be liable to Hughes
for an amount resultant from the formula in CALCULATION 1, as
defined in EXHIBIT I, TERMINATION LIABILITY CALCULATION.
17.1.3. ICOGC Termination For Launch Service Provider Default. ICOGC shall, at
its sole discretion, have the right to direct Hughes to terminate any Launch
Service (which termination shall be effected by Hughes by either (i) terminating
the relevant Launch Services or (ii) the Conversion of a Firm Launch to a Hughes
Optional Launch) prior to Launch, if the Launch Service Provider is in material
default of the terms and conditions of the relevant Launch Service Agreement, as
specified in this Contract including EXHIBITS B through E.
Upon the termination or Conversion of the Launch Service by Hughes on behalf of
ICOGC, the following shall occur:
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17.1.3.1 Termination Settlement. ICOGC shall be entitled to receive a
termination settlement consisting of (i) in the event of a
Conversion, a refund of all payments submitted against the
Launch Service Fee for the terminated Launch Service; and (ii)
in the event of a Launch Service termination, (a) a refund of
all payments submitted against the Launch Service Fee for the
terminated Launch Service, and (b) reimbursement for direct
damages or Launch Vehicle reprocurement fees as defined in the
Table below. In addition to the above, Hughes shall retain a
share of the Management Services fee, as such share is
calculated in CALCULATION 2 of EXHIBIT I, TERMINATION
LIABILITY CALCULATION.
LAUNCH SERVICE PROVIDER DIRECT DAMAGE OR REPROCUREMENT FEE
VALUE
--------------------------------------------------------------------------------
Delta-III For a terminated Delta-III Launch Service, Hughes shall reimburse
ICOGC for direct damages related to the terminated Launch Service
not to exceed * . ICOGC shall submit an invoice to Hughes which
includes a summary of the applicable direct damages within twenty
(20) days of determining the same.
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Proton In the event of an "anticipatory repudiation" by the
Proton Launch Service Provider of its obligations under the Launch
Service Agreement, Hughes shall provide to ICOGC either (i)
equivalent Launch Services via an alternate Launch Vehicle, taking
into account the launch manifest of such an alternative Launch
Service Provider, or (ii) * per affected Launch, whichever the
Proton Launch Service Provider elects to provide.
--------------------------------------------------------------------------------
Zenit For a terminated Zenit Launch Service, Hughes shall pay to ICOGC a
reprocurement fee of * for each terminated Launch Service.
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* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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17.1.3.2 Hughes Liability. Notwithstanding any other Article or term
in this Contract, in the event that Hughes elects to Convert
a Firm Launch Service to an Optional Launch Service (as
defined in EXHIBIT C and E) for utilization on another
Hughes program when ICOGC has the right to terminate a
Launch Service Provider for default as specified in ARTICLE
13 of EXHIBIT C, ICOGC RIGHTS AND REMEDIES FOR DELTA-III
LAUNCH SERVICES or ARTICLE 14 of EXHIBIT E, ICOGC RIGHTS AND
REMEDIES FOR ZENIT LAUNCH SERVICES, Hughes shall be liable
to ICOGC for the amounts specified above regardless of
receipt of any payment from the relevant Launch Service
Provider.
17.1.3.3 Hughes Default. Notwithstanding any other provision of this
Contract, in no event shall any breach or default by any
Launch Service Provider be considered to be a breach or
default of this Contract by Hughes.
17.2 Hughes Termination for ICOGC Default. Provided that Hughes is not in
default of any terms of this Contract, Hughes may terminate, prior to
Launch, any Launch Service(s) provided in this Contract for default upon
written notice to ICOGC at any time after the occurrence of any of the
following:
1) Failure of ICOGC to make any payment validly due to Hughes hereunder
when due, provided such failure is not cured within a period of thirty
(30) calendar Days following receipt of written notice thereof from
Hughes.
2) Failure of ICOGC to maintain the irrevocable Letter of Credit in the
amount specified in ARTICLE 4, CONTRACT PRICE, PAYMENT AND
ADJUSTMENTS, provided such failure is not cured within a period of
five (5) Business Days following receipt of written notice thereof
from Hughes.
3) ICOGC passes a resolution for winding-up or a petition is presented
for ICOGC's winding-up (unless such resolution or petition for winding
up is pursuant to a scheme of corporate reconstruction or amalgamation
and there is
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no adverse effect on the payment obligations to Hughes hereunder) and,
unless granted, is not dismissed within thirty (30) Days from
presentation; or ICOGC becomes unable to pay its debts as they become
due; or a receiver is appointed over all or a substantial part of
ICOGC's assets and the appointment is not discharged within thirty
(30) Days; or ICOGC or ICOGC's Parent Company sells, transfers, or
otherwise disposes of all or the greater part of its assets (other
than for full consideration) and as a result the Parent Company
Guarantee provided by ICOGC is prejudiced and adequate security in a
form reasonably acceptable to Hughes is not additionally provided.
4) If the interrelated Satellite Contract is terminated for any other
reason than a default by Hughes under the Satellite Contract.
5) If any Launch Service provided under this Contract is terminated by
the Launch Service Provider for default due to: (i) a failure of
payment by ICOGC under this Contract; or (ii) a Launch Service
postponement requested or caused by ICOGC, or (iii) the breach by
ICOGC of a material term of this Contract which, as a direct result,
is the sole cause of a Launch Service termination by the relevant
Launch Service Provider against Hughes provided always that the right
of termination under this ARTICLE 17.2 shall only apply to the Launch
Service so affected.
17.2.1 For each Launch Service(s) terminated by Hughes in accordance with
Paragraph 17.2 above, ICOGC shall be liable to Hughes for the amount
resultant from the relevant formula in CALCULATION 2, as defined in EXHIBIT
I, TERMINATION LIABILITY CALCULATION.
17.2.2 The rights and remedies provided to Hughes in this Paragraph 17.2
shall be exclusive and in lieu of any other rights and remedies provided by
law or in equity.
17.3 Termination Liability Mitigation. Without prejudice to the Delta-III
Termination Liability Mitigation as specified in EXHIBIT I, TERMINATION
LIABILITY CALCULATION, for any
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Launch Service terminated after 05 July 1996, Hughes shall utilize its
reasonable efforts to mitigate any resultant termination liability which
ICOGC is liable for by utilizing the rights granted by the relevant Launch
Service Agreement or such other rights or remedies negotiated with the
Launch Service Provider, if any. Hughes shall attempt to mitigate the
applicable termination liability for a period of eighteen (18) Months after
the relevant termination event or the time period granted by the relevant
Launch Service Agreement, whichever is less. The mitigation responsibility
shall not require Hughes to incur or pay any Launch Revision Fees or any
other charge whatsoever.
In furtherance of the above, Hughes as its sole obligation shall contact,
with ICOGC if requested, any Hughes Customer which may be able to utilize
the terminated Launch Service(s) for the purposes of determining if the
Hughes Customer has any interest in assuming or acquiring the terminated
Launch Service. ICOGC shall have the right to review and accept or reject,
prior to definitization, any proposed business transaction between Hughes,
the Launch Service Provider and the relevant Hughes Customer. Upon receipt
from Hughes, ICOGC shall provide acceptance or rejection of any proposed
business transaction within fourteen (14) calendar Days.
In addition, Hughes shall use its reasonable efforts to negotiate the
assignment, or novation, of the rights and benefits for any outstanding
Launch Service to ICOGC if this Contract is terminated due to a default by
Hughes under the Satellite Contract or this Contract. Any transfer,
assignment, or novation of a Launch Service to ICOGC shall be subject to
the terms of the relevant Launch Service Agreement and approval of the
relevant Launch Service Provider. ICOGC shall have the right to review and
accept or reject, prior to definitization, any proposed assignment, or
novation.
ICOGC agrees that any bonafide offer delivered by Hughes to ICOGC for
review shall be deemed to constitute the exercise of reasonable efforts.
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Upon execution of the applicable business transaction, Hughes shall
reimburse ICOGC the termination liability mitigation value within five (5)
Business Days from receipt of such value from the respective Launch Service
Provider or Hughes Customer, as appropriate.
17.4 Maximum Termination Liability. In no event shall ICOGC be liable to Hughes
under this ARTICLE 17 for any termination liability value greater than the
Contract Price. Any termination payment due to Hughes from ICOGC shall give
credit for any amounts paid by ICOGC in respect of the terminated Launch
Service(s).
17.5 Management Services Termination. For the purposes of this ARTICLE 17, any
termination of a Launch Services shall include the termination of the
associated Management Services and the cost of such termination of the
associated Management Services is included within the amounts derived from
CALCULATIONS 1 and 2 of EXHIBIT I, TERMINATION LIABILITY CALCULATION.
17.6 Remedies. In the event that the terminated Launch Service Provider fails to
provide any termination settlement payment to Hughes, as specified in this
ARTICLE 17, Hughes shall utilize its reasonable efforts to initiate and
pursue all remedies specified in this Contract including EXHIBITS B through
E, as applicable, including recovery by legal or arbitral proceedings or
the utilization of any existing corporate guarantee or other financial
guarantee or security. In no event shall Hughes be liable to ICOGC for any
Launch Service Provider termination settlement payment or remedy until
Hughes has received such termination settlement payment or remedy from the
Launch Service Provider. Failure of Hughes to receive or obtain any
termination settlement or remedy from the relevant Launch Service Provider
shall not be considered a breach or default of this Contract by Hughes.
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ARTICLE 18 DATA RIGHTS
Neither Party nor any Launch Service Provider shall obtain rights or ownership
to any intellectual property utilized and/or provided by the other Party under
this Contract or by any Launch Service Provider.
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ARTICLE 19 RESERVED
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ARTICLE 20 RIGHTS IN INVENTIONS
Neither Party shall obtain any rights to any invention developed or utilized by
the other Party or its Associates in the performance of this Contract.
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ARTICLE 21 CONFIDENTIALITY
21.1 The Parties may provide or exchange proprietary information during the
performance of the Work, in oral or written form, which may include
specifications, drawings, sketches, models, samples, computer programs,
reports, data, techniques, designs, codes, documentation, and financial,
statistical or other technical information essential to the objectives
of this of this Contract. All disclosures of such information will be
treated as proprietary if marked as "Proprietary" by the Party making
the disclosure at the time of disclosure.
21.2 Subject to the provisions of ARTICLE 21.3 below, the Party receiving the
proprietary information of the other Party shall maintain such
information in confidence and shall not use such information except as
expressly authorized by this Contract. Each Party agrees to use the same
care and discretion to void unauthorized disclosure, publication or
dissemination of the other Party's proprietary information and the
unauthorized use thereof as the receiving Party uses with respect to
similar information of its own, but in no event, less than reasonable
care. Should it become legally necessary for either Party to disclose
certain of the other Party's proprietary information to a third party,
it shall be disclosed only to the extent required by law and after a
five (5) Days prior written notification to the other Party of the
requirement for disclosure.
21.3 The obligations of confidentiality and restrictions on use specified in
this ARTICLE shall not apply to any information that:
A. is already in the possession of the receiving Party without
obligation of confidentiality at the time of disclosure;
B. is independently developed by the receiving Party or any of its
Affiliates or subcontractors prior to disclosure as evidenced by
appropriate documents;
C. is or becomes publicly available without breach of this Contract
and without the fault of the receiving Party;
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D. is lawfully and rightfully received by the receiving Party from
a third party; or
E. is released for public disclosure by the disclosing Party.
Specific information shall not be deemed to be available to the public
or in possession of the receiving Party merely because it is embraced by
more general information so available or in the receiving Party's
possession.
21.4 Hughes shall take best efforts necessary, including a appropriate
contractual provisions in subcontracts, to ensure the confidentiality of
all proprietary information of ICOGC which may be disclosed to
Subcontractors and Launch Service Providers.
ICOGC shall take best efforts necessary, including the appropriate
contractual provisions in consulting agreements, to ensure the
confidentiality of all proprietary information of Hughes which may be
disclosed to Consultants.
21.5 Except as otherwise provided in this Contract including but not limited
to ARTICLE 18, DATA RIGHT'S herein, the receiving Party agrees that: (i)
any proprietary information disclosed hereunder shall be used by the
receiving Party solely for the purpose of performing its functions in
connection with the Party's relationship with respect to the Work; (ii)
it will not use the proprietary information disclosed hereunder for any
other purpose; and (iii) it will not distribute, disclose or disseminate
to anyone such proprietary information of the disclosing Party, except
that either Party may disclose to its own employees or subcontractors on
a need-to-know basis, and either Party may disclose with the consent of
the disclosing Party which consent will not be given unless such third
party executes a proprietary data protection agreement with terms
consistent with the requirements herein prior to receiving such
information.
21.6 The Parties will specify individuals in writing as the point of contact
for receiving proprietary information exchanged between the Parties
pursuant to this Contract.
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21.7 ICOGC shall maintain EXHIBITS B through E, in accordance with the
Proprietary Data Agreement of even date executed between the Parties.
21.8 The confidentiality obligations in this ARTICLE 21 shall survive
expiration or termination of this Contract for whatever cause.
21.9 Nothing herein shall require a Party to disclose proprietary information
to another.
21.10 The obligations imposed by this ARTICLE 21 shall be limited in time only
by the events listed in ARTICLE 21.3, A through E.
21.11 Neither Party shall disclose the terms or conditions of this Contract,
except as may be required to perform this Contract, to acquire financing
or insurance or a benefit thereof, in support of arbitration or legal
proceedings relating hereto, or as required by its Government or in the
normal course of reporting to its parent company of for any other reason
with the consent of the other Party, which consent shall not be
unreasonably withheld.
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ARTICLE 22 INTERPRETATION
22.1 Applicable Law
This Contract and any performance related thereto shall be interpreted
and construed, governed and enforced in accordance with the Laws of
England; it being understood that the UN Convention on the International
Sale of Goods shall not applicable.
22.2 Amendments
The Contract may not be modified except by written amendment signed by
duly authorized representatives of both Parties.
The responsible authorized representatives of the Parties may be added
to or changed from time to time by written notice to the other Party.
Until further notice, the responsible authorized representatives are as
stated in ARTICLE 24, NOTICES.
For the purpose of administration of this Contract, including
amendments, any communication between ICOGC and Hughes shall be
enforceable and binding upon the Parties only if signed by the
appropriate responsible authorized representatives.
22.3 Changes Requested by Hughes or ICOGC
A. Any changes requested by Hughes during the performance of this Contract,
within the general scope of this Contract, which will or may add or
delete Work, affect the provision of Launch Services or Management
Services or will affect or may affect any other requirement of this
Contract, shall be submitted in writing to ICOGC within an acceptable
time period prior to the proposed date of the change. Such submittal
shall allow ICOGC a reasonable period of time to evaluate Hughes'
requested change. If such Hughes' requested change causes an increase or
decrease in the total Contract Price, Hughes shall submit proposal to
ICOGC.
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B. ICOGC shall notify Hughes in writing within thirty (30) Days after
receipt of the requested change and price adjustment, if any, whether or
not it agrees with and accepts such change. If ICOGC agrees with and
accepts the Hughes' requested change, Hughes shall proceed with the
performance of the Contract as changed and an amendment to the Contract
reflecting such change, and price adjustment, if any, shall be issued.
If ICOGC does not agree with such Hughes' requested change, the Parties
shall attempt to reach agreement on such change. In the event the
Parties are unable to reach agreement on such change, or price
adjustment, if any, or both, Hughes shall proceed with the performance
of the Contract, as unchanged.
C. For any changes requested by ICOGC during the performance of this
Contract which will or may affect the provision of Launch Services or
Management Services, Hughes shall respond to that request in writing to
ICOGC within thirty (30) Days after such request. If such ICOGC
requested change causes an increase or decrease in the total Contract
Price, Hughes shall submit to ICOGC, at the time the response to the
requested change is submitted, the details of such increase or decrease.
If ICOGC should question the values involved in any proposal by Hughes,
subject to the execution of a non-disclosure agreement between all
relevant Parties, Hughes shall provide access to a third party auditor
acceptable to both Parties, which third party auditor may review the
relevant cost documentation and certify to ICOGC as to the validity of
the Hughes proposal. ICOGC shall notify Hughes in writing, within a
reasonable time after receipt of Hughes' response, whether or not it
agrees with and accepts Hughes' response. If ICOGC agrees with and
accepts Hughes' response, Hughes shall proceed with the performance of
the Contract as changed and an amendment to the Contract reflecting such
change, and price adjustment, if any, shall be incorporated into the
Contract. If ICOGC does not direct such change, then Hughes shall
proceed with the performance of the Contract as unchanged.
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ARTICLE 23 PUBLICITY
Each Party shall obtain the prior written approval of the other Party, which
approval shall not be unreasonably withheld or delayed, concerning the content
and timing of news releases, articles, brochures, advertisements, prepared
speeches and other information releases concerning the Work performed or to be
performed hereunder, within reasonable time prior to the release of such
information. For the avoidance of doubt, each Party shall be allowed to
publicize the award of the Contract, subject to the approval process stated
above.
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ARTICLE 24 NOTICES
All notices, demands or other communications required or permitted to be given
or made hereunder shall be in writing and delivered personally or sent by
prepaid first class post, or by telex, telefax or cable addressed to the
intended recipient thereof at its address set out below or to such other address
or telex or telefax number as either Party may from time to time duly notify the
other.
A. In respect of ICOGC, to:
ICO Global Communications (Operations) Ltd.
c/o I-CO Services Limited
1 Queen Caroline Street
Hammersmith, London W6 9BN
United Kingdom
Telephone: (0181) 600-1000
Facsimile: (0181) 600-1199
Attention: Olof Lundberg
Chief Executive Officer
cc: Space Segment Contracts Administrator
ICO Program Office
Hughes Space & Communications, MS: SC/S10/S35
PO Box 92919
Los Angeles, CA, 90009
Phone: (310) 364-9407
Facsimile: (310) 364-9495
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B. In respect of Hughes, to:
Hughes Space and Communications International, Inc.
Bldg. S10, M/S S350,
Post Office Box 92919, Airport Station,
Los Angeles, California 90009
Telephone: (310) 364-5729
Facsimile: (310) 364-7990
Attention: Dennis R. Beeson
Manager, Contracts
cc: John Perkins
Vice-President, Launch Services Acquisition & Risk Management
Bldg: A01 M/S:4A436
Post Office Box 9712
Long Beach, California 90810-9928
Phone: (310) 525-5235
Facsimile: (310) 525-5310
Any notice or other document if served by post, shall be deemed to have been
served at the expiration of seven (7) Days after the time when the letter
containing the same was posted, and in proving such service it shall be
sufficient to prove that the letter containing the notice or document was
properly addressed, stamped and posted. A notice sent by telex, telefax or cable
is deemed to have been served: (1) two (2) hours after dispatch, if dispatched
on a Business Day before 3:00 PM; or (2) in any other case, at 10:00 AM on the
Business Day after the date of dispatch. Here a Business Day means a Business
Day in the city or other location to which the notice is sent, and the times
mentioned are those in that location.
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ARTICLE 25 INTEGRATION
This contract, together with the EXHIBITS, contains the entire agreement between
the Parties relating to subject matter hereof. All prior understandings,
representations and warranties (including those contained in sales, promotional
and/or marketing materials) by and between the Parties, written or oral, which
may be related to the subject matter hereof in any way, are superseded by this
Contract.
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ARTICLE 26 ASSIGNMENT
26.1 Hughes shall not assign, novate or transfer this Contract or any of its
rights, duties or obligations thereunder to any person or entity, in
whole or part without the prior written consent of ICOGC (which approval
shall not be unreasonably withheld or unduly delayed) except that Hughes
may assign, novate or transfer this Contract, and its duties and
obligations thereunder either in whole or in part, to any Hughes
Affiliate which is not engaged in business competitive to ICOGC provided
always that Hughes shall remain liable with respect to performance of
all duties and obligations set forth in this Contract, including
compliance with all applicable laws and regulations and provided further
that the Hughes Guarantee specified in EXHIBIT H, HUGHES GUARANTEE,
remains in full force and effect.
26.2 ICOGC shall have no right to assign, novate or transfer this Contract,
or any of its rights, duties or obligations hereunder without the prior
written consent of Hughes (which consent shall not be unreasonably
withheld or unduly delayed), except to any ICOGC Affiliate or to a third
party financing the Satellites or Launch Services provided that each
such assignment, novation or transfer shall have no material adverse
effect on material obligation of ICOGC under this Contract, including,
but not limited to, payment obligations to Hughes under this Contract.
26.3 In the case of an assignment, novation or transfer of this Contract by
ICOGC in accordance with ARTICLE 26.2, the ICOGC Guarantee specified in
EXHIBIT G, ICOGC GUARANTEE, shall remain in full force and effect save
where the assignment, novation or transfer is to a third party financing
the Satellites or Launch Services, in which case Hughes' consent to
release the said ICOGC Guarantee may be requested by ICOGC and such
consent shall not be unreasonably withheld, or unduly delayed.
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26.4 ICOGC shall give fifteen (15) Business Days prior notice to Hughes of
any assignment, novation or transfer and brief details explaining the
proposed transaction.
26.5 This Contract shall be binding upon the Parties hereto and their
successors and permitted assigns.
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ARTICLE 27 SEVERABILITY
In a event any one or more of the the provisions of this Contract shall, for any
reason, be held to be invalid or unenforceable, the remaining provisions of this
Contract shall be unimpaired, and the invalid or unenforceable provision shall
be replaced by a mutually acceptable provision which, being valid and
enforceable, comes closest to the intention of the Parties underlying the
invalid or unenforceable provision.
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ARTICLE 28 RESERVED
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ARTICLE 29 RESERVED
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ARTICLE 30 DISPUTES AND ARBITRATION
30.1 If, during the course of performance hereunder, dispute arises between
ICOGC and Hughes as to the rights or obligations of either Party under
this Contract, either Party may give written notice of its objections
and the reasons therefor ("Dispute Notice") and may recommend corrective
action. Hughes' Program Manager shall consult with ICOGC's authorized
senior program management representative in an effort to reach a mutual
agreement to overcome such objections. In the event mutual agreement
cannot be reached within five (5) Business Days of such notice, the
respective positions of the Parties shall be forwarded to ICOGC's Chief
Executive Officer and Hughes' President, for discussion and an attempt
to reach mutual agreement.
30.2 If mutual agreement cannot be reached within fifteen (15) Business Days
of the Dispute Notice, such dispute may be referred on the application
of either Party for final determination to an arbitration tribunal
convened by the London Court of International Arbitration which shall be
conducted by three arbitrators in the English language.
30.3 The place of arbitration shall be London, England.
30.4 The award rendered by the arbitration tribunal shall be binding on both
Parties, and shall be enforceable by any court of competent
jurisdiction. The cost of arbitration, including the fees and expenses
of the arbitrators, will be shared equally by the Parties, unless the
award otherwise provides. Each Party shall bear the cost of preparing
and presenting its own case, unless the award otherwise provides.
30.5 Notwithstanding anything else contained herein, the Parties agree that
time is of the essence with regard to the time limits imposed by this
ARTICLE 30 in resolving such dispute.
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ARTICLE 31 RESERVED
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ARTICLE 32 REPLACEMENT LAUNCHES
32.1 Replacement Launch Services. If any Launch Service herein should result
in mission failure, ICOGC may request Hughes to provide a replacement
Launch proposal. Such request shall include preferred Launch Service
Provider(s), the date on which the Satellite is anticipated to be ready
for launch and any mission specific data which will influence the
provision of Launch Services for that Satellite. Within thirty (30) Days
of receipt of such a request, Hughes shall submit a proposal to ICOGC
for the acquisition of a replacement Launch Service. Any Hughes proposal
shall be based upon and subject to the terms of the applicable Launch
Service Agreement(s). Hughes agrees to provide to ICOGC any priority
scheduling right or benefit allowed for in the applicable Launch Service
Agreement(s) for the mission failure.
32.2 Hughes Proposal. Any Hughes proposal for a replacement Launch under an
existing Longterm Launch Service Agreement shall: (i) be based upon, and
be subject to, the provisions of the relevant EXHIBIT(S) B through E;
(ii) utilize the Launch Service Fee and payment schedules specified in
Table 4 and Table 5 of ARTICLE 4, CONTRACT PRICE, PAYMENT AND
ADJUSTMENTS; and (iii) include a fee of * per Launch Service. Any
Hughes proposal for a replacement Launch which does not utilize a
Longterm Launch Services Agreement shall include a Management Services
fee equal to * of the relevant Launch Service Cost initially proposed,
and finally negotiated between Hughes and the Launch Service Provider.
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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ARTICLE 33 OPTIONS
33.1 Launch Insurance. Upon receipt of written request from ICOGC, Hughes
shall submit a proposal to ICOGC for the provision of launch insurance
for the Launch Services provided herein. Such proposal shall assume that
the launch insurance shall be obtained by Hughes on behalf of ICOGC and
that ICOGC shall be the named insured. The written request from ICOGC
shall identify the Launch Services, the coverage timing and the coverage
amounts of such launch insurance policy. Any Hughes proposal shall be
based upon the actual launch insurance cost to Hughes and shall include
an additional Management Services fee equal to * of the actual
launch insurance cost. ICOGC shall notify Hughes whether it accepts or
rejects any Hughes proposal within thirty (30) Days of receipt of such
proposal or by the offer validity date provided by the relevant
insurance underwriters, whichever is sooner. For the purposes of this
Paragraph, launch insurance may also include any relaunch, repayment or
other type of insurance program offered by any Launch Service Provider.
33.2 Additional Launch Services. At any point in time, ICOGC may request
Hughes to provide additional Launch Services under any Longterm Launch
Service Agreement Any such request by ICOGC shall identify the required
Launch Period, preferred Launch Service Provider and Satellite to be
launched. Hughes shall provide a written proposal to ICOGC within
fifteen (15) Calender Days of receipt of such request. Any Hughes
proposal shall be subject to and conditional upon: i) the existence and
terms of a Longterm Launch Service Agreement with the Launch Service
Provider identified in such ICOGC request as of the later of the date of
(a) the relevant ICOGC request or (b) the Launch Service option
exercise; ii) compliance with the scheduling constraints specified in
ARTICLE 3.3.3 herein; iii) the availability of the Launch Vehicle in
the requested Launch Period, and iv) compliance with the Launch Service
Fee and payment schedules specified in Tables 4 and 5 of ARTICLE 4,
CONTRACT PRICE, PAYMENT AND ADJUSTMENTS. For the avoidance of doubt, if
Hughes has a launch opportunity available under a Longterm Launch
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
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Service Agreement, subject to the terms of this ARTICLE 33.2, Hughes
shall allow ICOGC to purchase such launch opportunity to Launch an
option Satellite.
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ARTICLE 34 LIMITATION OF LIABILITY
34.1 In no event shall either Party be liable to the other Party or its
Associates or customers under or in connection with this Contract under
any theory of contract, tort, negligence, strict liability or any other
legal or equitable theory or otherwise for special, collateral,
punitive, exemplary, consequential, indirect and/or incidental damages
(including but not limited to lost revenues, loss of goodwill, loss of
savings, loss of use, interruptions of business and claims of either
Party or for any other form of economic loss), except as expressly
provided in this Contract. It is the intent of the Parties that the
public interest is not involved in the subject matter of this Contract.
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ARTICLE 35 MISCELLANEOUS
35.1 Disclaimer of Agency. None of the provisions of this Contract shall be
construed to mean that either Party hereto is appointed or is in any way
authorized to act as an Agent of the other Party. This Contract does not
constitute, create, give effect to, or otherwise recognize a joint
venture, partnership or formal business organization of any kind, and
the rights and obligations of the Parties shall be limited to those
expressly set forth herein.
35.6 Waiver of Breach of Contract. A waiver of any breach of a provision
hereof shall not be binding upon either Party unless the waiver is in
writing and such waiver shall not affect the rights of the Party not in
breach with respect to any other or future breach. No failure or delay
by any Party or time or indulgence given by it in or before exercising
any remedy or right under or in relation to this Contract shall operate
as a waiver of the same nor shall any single or partial exercise of any
remedy or right preclude any further exercise of the same or the
exercise of any other remedy or right.
35.3 Term of Contract. This Contract shall remain in full force and effect as
long as either Party is or may be required to perform any obligation
pursuant to this Contract.
35.4 Language. With respect to all correspondence relating to this Contract
and to all material, including labels and markings of equipment,
submitted by Hughes hereunder, the English language and U. S. units of
measure, or unit(s) of measure utilized by a Launch Service Provider
shall be used. Controlling language for this Contract shall therefore be
the English language.
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35.5 Key Personnel. Hughes agrees that the following individuals are
necessary for the successful completion of Management Services and
Launch Services to be performed under this Contract and shall not be
removed from the performance of these services without the consent of
ICOGC, which consent shall not be unreasonably withheld. In the event
that these personnel become unavailable for any reason and consent is
given, Hughes shall select suitable replacement personnel who possess
comparable levels of experience, qualifications and ability.
Notwithstanding its role in approving key personnel and their
replacements, ICOGC shall have no supervisory control over their work,
and nothing in this ARTICLE shall relive Hughes of any of its
obligations under this Contract, or of its responsibility for any acts
or omissions of its personnel.
Name Title
---- -----
J. Perkins Vice-President,
Launch Services Acquisition & Risk Management
G. Dutcher Program Manager
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IN WITNESS WHEREOF, this Contract has been issued in two counterparts and signed
in the city of Brussels, Belgium on behalf of ICOGC and Hughes by persons
authorized on their behalf.
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
See Original Contract for Signatures
By:
----------------------------------------
(Signature)
Name:
-------------------------------------
Title:
------------------------------------
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED
See Original Contract for Signatures
By:
----------------------------------------
(Signature)
Name:
-------------------------------------
Title:
------------------------------------
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4.7.2.1
1 JULY 1996 - AMENDMENT 1
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
------------------------
Exhibit A
Statement of Work
------------------------
7 December 1995
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
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TABLE OF CONTENTS
1 MANAGEMENT SERVICES PROVIDED FOR ICOGC GLOBAL
COMMUNICATIONS (OPERATIONS) LIMITED (ICOGC) ..........................1
1.1 Scope ................................................................1
1.2 Applicable Documents .................................................1
2 DESCRIPTION OF WORK ..................................................2
2.1 Launch Service Provider Selection And Turn-On ........................2
2.1.1 Launch Schedules .....................................................2
2.1.2 Launch Agreements ....................................................2
2.2 Post Launch Service Provider Contract Award ..........................2
2.2.1 Management Activities ................................................2
2.2.1.1 Progress and Technical Meetings ......................................3
2.2.2 Selection of Launch Slot and Launch Date .............................3
2.2.3 Satellite/Launch Vehicle Technical Activities ........................3
2.2.4 Documentation ........................................................4
2.2.5 Launch Vehicle Acceptance ............................................4
2.2.6 Mission Director .....................................................5
3 REPORTING ............................................................6
4 RESERVED .............................................................7
5 LOGO .................................................................8
6 LAUNCH CAMPAIGN ACCOMMODATION AND FACILITIES .........................9
7 PRODUCT ASSURANCE ACTIVITIES & SAFETY ...............................11
7.1 Launch Vehicle Qualification ........................................11
7.2 Launch Vehicle Failure Reviews ......................................11
7.3 Requests for Deviation/Waiver .......................................11
8 PAYLOAD PROCESSING FACILITIES AND SERVICES ..........................12
9 MISSION INTEGRATION .................................................13
10 POST MISSION SUPPORT SERVICES .......................................14
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
1 MANAGEMENT SERVICES PROVIDED FOR ICOGC GLOBAL COMMUNICATIONS
(OPERATIONS) LIMITED (ICOGC)
1.1 Scope. This Statement of Work defines the Management Services to a
provided by Hughes Space and Communications International, Inc.,
(Hughes) to ICOGC for the supply of Launch Services and the overall
management of the Launch Service Agreements for Launch of ICOGC's twelve
(12) Satellites. Hughes shall assume all day-to-day management
activities relative to the procurement of Launch Services.
1.2 Applicable Documents. Satellite Contract Between Hughes Space and
Communications International, Inc. and ICOGC Global Communications
(Operations) Limited, dated 3 October 1995, Contract Number
ICOO/95-1002/NR.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
2 DESCRIPTION OF WORK
2.1 Launch Service Provider Selection And Turn-On. Hughes shall ensure that
the contract provisions with the Launch Service Providers enable Hughes
to meet the requirements defined in this Statement of Work, and are
fully consistent with the Satellite design, Designated Launch Site
processing and mission requirements.
2.1.1. Launch Schedules. Hughes shall schedule each of the respective
Satellite Launches with a Launch Service Provider in sufficient
time to assure that the scheduling requirements of the Contract
are satisfied. Hughes shall provide alternate Launch risk
management plans in the event scheduling problems develop.
2.1.2 Launch Agreements. Launch Services via Long Term Launch Service
Agreements shall be employed to satisfy the terms of this
Contract, or at ICOGC's direction, Hughes shall develop, in
conjunction with ICOGC, the appropriate and necessary Request
For Proposal (RFP) documentation (when necessary), consistent
with the requirements, terms and conditions of this Contract and
the Satellite Contract to enable the competitive solicitation of
bids from alternate Launch Service Providers.
Hughes shall manage this program so as to minimize the impact of
any Launch Service Provider substitution.
2.2 Post Launch Service Provider Contract Award
2.2.1 Management Activities. After Launch Service Provider turn-on or
award of a Launch Service Agreement, Hughes shall provide all
appropriate management and technical services to support the
Satellite to Launch
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
Vehicle interface activities and shall be responsible for all
Contract management functions, including but not limited to:
- Negotiation of contract changes
- Management and tracking of program milestones
- Coordination of data/information exchanges, and
- Data approvals as required by the Launch Service
Agreement
2.2.1.1 Progress and Technical Meetings. Regular progress meetings shall
be conducted as necessary with the Launch Service Providers to
which ICOGC shall be invited. As a minimum these will be held at
quarterly intervals and may be combined with technical interface
meetings for expediency.
2.2.2 Selection of Launch Slot and Launch Date. Hughes shall
coordinate the development of the Launch Service Master Phasing
Schedule and monitor progress against major milestones.
Hughes shall ordinate with ICOGC the selection of the relevant
Launch Slot and Launch Date consistent with the schedule
established by ICOGC requirements. Hughes shall initiate
discussion with ICOGC at least thirty (30) calender Days prior
to the determination dates for the establishment of the Launch
Date.
2.2.3 Satellite/Launch Vehicle Technical Activities. Hughes shall
coordinate the overall schedule for the Launch Services and
content of meetings and major reviews throughout the
Satellite/Launch Vehicle integration process.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
Hughes shall ordinate the Launch Vehicle and Satellite
integration process and provide the management interface to
ensure that technical requirements, data and analyses are
established and coordinated between the engineering staffs of
the Satellite Program Office and the Launch Service Provider.
Hughes shall maintain and report the status of all action
items generated from the above meetings and coordinate their
resolution.
2.2.4 Documentation. Hughes shall review and provide ICOGC all
documentation, analyses and reports prepared under this
Contract, in accordance with the applicable Launch Service
Agreement, which are required to successfully complete the
integration process. These may include, but are not limited to:
- Interface Control Documents
- Coupled Loads Analysis
- Thermal Analysis
- Integration and Mission Analyses
- Launch Operations and Safety Planning
- Separation analysis
- Venting analysis
- Clearance analysis
- Launch operations and safety documents
- Payload matchmates and separation shock tests when
required.
- Trajectory, Guidance Targeting, Accuracy analysis and
associated orbit characteristics and dispersion
- Launch Vehicle contamination and cleanliness analysis
- Launch Failure Reports, if applicable
2.2.5 Launch Vehicle Acceptance. Hughes shall monitor all work in
progress and the final acceptance of the Launch Vehicle in
accordance with the
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
applicable Launch Service Agreement. This shall include, but is
not limited to:
- review of progress reports submitted by the relevant
Launch Service Provider
- attending major reviews
- tracking problem resolutions
2.2.6 Mission Director
Hughes shall act in the capacity of Mission Director (i.e ., the
individual responsible for providing the Satellite status during
the Launch campaign and the final go/no-go decision for Launch
to the Launch Service Provider) for ICOGC during the Launch.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
3.0 REPORTING
Hughes shall provide ICOGC with full visibility of Contract and
technical actions by providing a monthly progress report to the ICOGC
resident team. The format of this report shall be jointly agreed upon by
ICOGC and Hughes and shall be adjusted over the life of the program as
necessary.
Hughes shall inform ICOGC, or its designated representative, of the date
and time of all significant meetings (i.e. Preliminary Design Reviews,
Critical Design Reviews, Management Review Meetings, etc.), and ICOGC
personnel or their designated representative, as they choose, may attend
any of the meetings held with the Launch Service Provider and/or the
Satellite manufacturer. This attendance shall be limited to three (3)
ICOGC personnel. Additional ICOGC personnel may attend as mutually
agreed upon by ICOGC, Hughes and the Launch Service Provider.
Hughes shall notify ICOGC promptly, initially either in person or by
telephone and then shall confirm in writing within seven (7) Days, of
any material event, circumstance, or development which the Hughes
Mission Manager reasonably believes will affect (a) the quality of any
Launch Vehicle or component part thereof or any services or data and
documentation to be provided herein, or (b) the Launch Schedule(s)
herein. Notifications made pursuant to this Paragraph are intended to
supplement but not replace information available or provided to ICOGC
pursuant to this Article.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
4.0 RESERVED
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
5.0 LOGO
The Launch Service Provider shall include provision for the inclusion of
the ICOGC logo on each Launch Vehicle fairing. ICOGC shall supply final
details of the logo no later than Launch minus twelve Months (2-12) for
the first Launch on each type of Launch Vehicle (i.e. Atlas IIAS,
Proton, Delta III, Zenit, etc.).
Page 8
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
6.0 LAUNCH CAMPAIGN ACCOMMODATION AND FACILITIES
Hughes shall assure that the Launch Service Providers will make
available office space for up to three (3) ICOGC residents and/or
representatives at the Launch Service Provider's Satellite processing
and Designated Launch Site facility, for the duration of the Satellite
Launch campaign. These facilities shall be co-located with those of the
Hughes Launch support team. Appropriate telephone, fax, copying and
other general office facilities shall be provided. ICOGC shall have full
access to all appropriate data and monitoring facilities at the
Designated Launch Site which are available to the Hughes Launch team.
In the case of Proton or Zenit Launches where commercially available
off-base housing, transport and general living facilities are not
available, Hughes shall, if requested, arrange to supply these to the
ICOGC personnel in the same manner provided to its own Launch team. All
charges, if any, incurred by Hughes for the provision of these living
facilities, food and transportation shall be billed to ICOGC.
Note: i For Launches conducted in Baikonur, there is a charge of
between $115.00 US and $135.00 US (depending on the year of the
Launch) for lodging and all food service per person per day. A
charge of $900.00 US per person is levied for round trip
transportation from Moscow to the Baikonur Launch Site and all
associated ground transportation.
ii For Zenit Launches transportation for ICOGC personnel to Long
Beach, California, and/or any other point of debarkation of the
command and control ship or any air transportation, or surface
ship transport to the command and control ship at sea, shall be
borne by ICOGC. Any cost for ICOGC personnel's lodging, meals,
transportation and recreation, while on board the command and
control ship, shall be borne by ICOGC, but shall not to exceed
$200.00 US per day per
Page 9
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
person. If Hughes is not charged for lodging, meals and
transportation while on board the command and control ship, no
cost will be passed to ICOGC.
Page 10
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
7.0 PRODUCT ASSURANCE ACTIVITIES & SAFETY
7.1 Launch Vehicle Qualification. Hughes shall ensure that the
Launch Service Provider clearly indicates qualification status
of the Launch Vehicle and assures that any new, modified or
mission peculiar items have been qualified. All items falling
into this category shall be highlighted to ICOGC.
7.2 Launch Vehicle Failure Review. Hughes shall ensure that ICOGC
is appropriately involved in any Launch Vehicle failure review
board activities relevant to ICOGC Launch Vehicle hardware or
which may impact the ability of the Launch Service Provider to
deliver on time. The level of involvement will vary. However any
failure occurring shortly and in particularly immediately before
planned ICOGC Launch shall include full disclosure and
participation rights.
7.3 Requests for Deviation/Waiver. All Launch Service Provider
deviations/waivers affecting key performance margins, interface
control documents or mission requirements shall be promptly
submitted to ICOGC for review.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
8.0 PAYLOAD PROCESSING FACILITIES AND SERVICES
Hughes shall be responsible for arranging all necessary payload
processing facilities and services required to safely and efficiently
support Satellite payload processing at the Designated Launch Site,
including any Satellite test activities.
Page 12
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
9.0 MISSION INTEGRATION
Hughes shall, as a minimum, conduct the following mission reviews and
meetings with the Launch Service Provider, to which ICOGC personnel
shall be invited:
- Technical Working Groups (as needed).
- Preliminary and Critical Mission Peculiar Design Reviews
(typically only held once per Launch).
- Ground Operations Readiness Review (typically at L-12 and L-6
months).
- Launch Vehicle Readiness Review (typically 2 days before each
Launch)
- Launch Readiness Review (typically 1 day before each Launch)
- Launch Vehicle quality and/or systems reviews if provided by
Launch Service Providers.
Page 13
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT A
CONTRACT NO: ICOO/95-1003/YW STATEMENT OF WORK
- --------------------------------------------------------------------------------
10.0 POST MISSION SUPPORT SERVICES
Hughes shall provide all necessary post mission support services. These
shall include but are not limited to:
- Satellite orbit and attitude data at separation, within 45 minutes of
separation.
- Post Launch evaluation report (Satellite flight environment and
separation assessment) from Launch Vehicle telemetry.
Page 14
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1 JULY 1996 - AMENDMENT 1
4.7.2.6a
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
-------------------------
EXHIBIT F
MILESTONE PAYMENT PLAN
-------------------------
7 DECEMBER 1995
220
* [EXHIBIT F AMENDMENT 1 TOTAL OF 7 PAGES HAVE BEEN REDACTED]
* Confidential Treatment Requested and the Redacted Material has
been separately filed with the Commission.
221
*
222
*
223
*
224
*
225
*
226
*
227
1 JULY 1996 - AGREEMENT 1
4.7.2.7
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
EXHIBIT G
ICOGC GUARANTEE
7 DECEMBER 1995
228
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT G
Contract No: ICOO/95-1003/YW ICOGC GUARANTEE
- --------------------------------------------------------------------------------
ICOGC GUARANTEE
1 In consideration of Hughes Space and Communications International, Inc
("Hughes") entering into a contract with ICO Global Communications (Operations)
Limited ("ICOGC") for the supply of launch services and the management thereof
for the ICO Program dated 7 December, 1995 (as such contract may be amended,
varied, extended, renewed or supplemented from time to time, the "Launch Vehicle
Contract" and expressions defined in the Launch Vehicle Contract shall have the
same meanings in this Guarantee) and for sufficient consideration (receipt
whereof the Guarantor hereby acknowledges) I-CO GLOBAL COMMUNICATIONS (HOLDINGS)
LIMITED (the "Guarantor") hereby unconditionally guarantees the payment on the
due date of all sums payable now or in the future to Hughes by ICOGC under the
Launch Vehicle Contract when and as the same become due and the full, prompt and
complete performance by ICOGC of all its obligations under the Launch Vehicle
Contract.
2 The Guarantor hereby unconditionally and irrevocably agrees as a
separate, continuing and primary obligation to indemnify Hughes on demand should
any amount due under Clause 1 not be recoverable from the Guarantor on the basis
of guarantee for any reason whatsoever.
3 The Guarantor's obligations under this Guarantee shall be subject to all
the relevant terms and conditions of the Launch Vehicle Contract and nothing in
this Guarantee shall constitute a waiver by ICOGC or the Guarantor of any
defense, claim or counterclaim available to ICOGC under the Launch Vehicle
Contract or otherwise. Subject to paragraph 2 above, the Guarantor's sole
obligation under this Guarantee shall be as guarantor of the obligations of
ICOGC under the Launch Vehicle Contract, subject to all of the limitations on
such obligations which are provided for in such Launch Vehicle Contract or under
applicable law except for such limitations as may arise in law as a result of
bankruptcy, insolvency or reorganisation proceedings relating to ICOGC. The
Guarantor hereby acknowledges that its liability as Guarantor under this
Guarantee shall not be discharged or impaired in any way by:
(a) any compromise or release of or abstention from perfecting or
enforcing any right or remedy against ICOGC or any other person;
or
(b) any release of or granting of time to ICOGC or any other
indulgence, waiver, consent or concession being granted at
anytime to ICOGC or any other person; or
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT G
Contract No: ICOO/95-1003/YW ICOGC GUARANTEE
- --------------------------------------------------------------------------------
(c) any other act, omission, dealing, matter or thing whatsoever
(including, without limitation, any change in the memorandum or
articles of association (or their equivalent) of ICOGC, or any
irregularity, unenforceability or invalidity of any obligations
of ICOGC under the Launch Vehicle Contract or the liquidation,
dissolution, reconstruction, amalgamation or bankruptcy of ICOGC
or any other change in the corporate relationship between the
Guarantor and ICOGC including any merger, consolidation or sale
of assets of ICOGC; or
(d) any legal limitation, disability, incapacity or other
circumstances relating to ICOGC or any other person or any
amendment to or extension or variation of the terms of the
Launch Vehicle Contract or any other document referred to in the
Launch Vehicle Contract.
4 The Guarantor hereby declares and agrees that this Guarantee shall be
held by Hughes as a continuing security and shall not be satisfied by any
intermediate payment or satisfaction of any part of the obligations hereby
guaranteed and shall remain in full force and effect until all the obligations
of ICOGC under the Launch Vehicle Contract have been performed and all sums
payable by ICOGC under the Launch Vehicle Contract have been fully paid and
discharged in full in each case in accordance with the Launch Vehicle Contract
and subject to all the provisions therein contained.
5 This Guarantee shall be in addition to, and not in substitution for, any
other rights which Hughes may now or hereafter have under or by virtue of any
guarantee or security or agreement or any lien or by operation of law or under
any collateral or other security now or hereafter held by Hughes or to which
Hughes may be entitled.
6 Any release, compromise or discharge of the obligations of the Guarantor
under this Guarantee shall be deemed to be made subject to the condition that it
will be void if any payment or security which Hughes may receive or have
received is set aside or proves invalid for whatever reason.
7 All payments to be made by the Guarantor to Hughes under this Guarantee
shall be made on the due date in United States Dollars and in cleared funds and
to such account as Hughes shall specify and shall be made free and clear of, and
without deduction for or on account of, any present or future taxation, unless
the Guarantor is required by law or regulation to make payment subject to any
taxation, in which event such payment shall be increased by such amount as may
be necessary to ensure that Hughes receives a net amount, which, after deducting
or withholding such taxation, is equal to the full amount which Hughes would
have received had such payment not been subject to such taxation.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT G
Contract No: ICOO/95-1003/YW ICOGC GUARANTEE
- --------------------------------------------------------------------------------
8 The Guarantor shall be subrogated to the rights of Hughes against ICOGC
in respect of any amounts paid by the Guarantor to Hughes pursuant to the
provisions of this Guarantee; provided, however, that the Guarantor shall not be
entitled to enforce or receive any payments arising out of, or based upon, such
right of subrogation, or any related claim for exoneration, indemnification or
reimbursement that the Guarantor may now have or hereafter acquire against ICOGC
in any way related to or arising from the obligations ICOGC under the Launch
Vehicle Contract, until such obligations or, as the case may be the relevant
part thereof, shall have been paid and performed in accordance the terms and
conditions of the Launch Vehicle Contract.
9 In addition to the liability otherwise assumed in this Guarantee, the
Guarantor shall immediately reimburse Hughes for all costs and expenses,
including all reasonable legal fees and costs, incurred by Hughes in the
collection or enforcement of any liability under this Guarantee. However, if the
Guarantor is the prevailing party in any proceedings to collect or enforce any
liability under this Guarantee, Hughes agrees that it shall immediately
reimburse the Guarantor for all costs and expenses, including all reasonable
legal fees and costs, which the Guarantor may incur in connection with any such
proceedings, and the Guarantor shall have no liability to Hughes under the
preceding sentence in this paragraph 9 in any such proceeding.
10 This Guarantee and any provision hereof may be waived, amended,
modified or supplemented as between Hughes and the Guarantor only by an
agreement or instrument in writing executed by the Guarantor and Hughes.
11 Any notice, demand or other communication required or permitted to be
made hereunder shall be in writing and signed by or on behalf of the person
giving it. Except in the case of personal service, any notice shall be sent or
delivered to the party to be served at the address or to the facsimile number
set out below and if a person or officer is named for the purpose, the notice
shall be marked for his attention. Any alteration in such details shall, to have
effect, be notified to the other parties in accordance with this clause.
12 Service of a notice must be effective by one of the following methods:
12.2.1 personally on the Chief Executive Officer or the Company
Secretary of either party and shall be treated as served at the
time of such notice;
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT G
Contract No: ICOO/95-1003/YW ICOGC GUARANTEE
- --------------------------------------------------------------------------------
12.2.2 by prepaid first class post (or by airmail if from one country
to another) and shall be treated as served on the second (or if
by airmail the fourth) Business Day after date of posting. In
proving service it shall be sufficient to prove that the
envelope containing the notice as correctly addressed, postage
paid and posted; or
12.2.3 by delivery of the notice through the letterbox of the party to
be served or by sending it by facsimile and shall be treated as
served on the first Business Day after the date of such delivery
or sending. In proving service by facsimile it shall be
sufficient to prove that the facsimile was preceded by the
answerback code of the party to whom it was sent.
A. In respect of the Guarantor, to:
I-CO Global Communications (Holdings) Limited
c/o I-CO Services Limited
1 Queen Caroline Street
London W6 9BN
Telephone: (181 600-1000)
Facsimile: (181 600-1199)
Attention: Olof Lundberg
B. In respect of Hughes, to:
Hughes Space and Communications International, Inc
Bldg. S10, M/SS350
Post Office Box 92919, Airport Station,
Los Angeles, California 90009
Telephone: (310) 304-5729
Facsimile: (310) 364-7990
Attention: Dennis R. Beeson
Manager, Contracts.
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT G
Contract No: ICOO/95-1003/YW ICOGC GUARANTEE
- --------------------------------------------------------------------------------
13 This Guarantee shall be governed by, and construed in accordance with
English law. The provisions of Article 30 of the Launch Vehicle Contract
(Disputes and Arbitration) shall apply mutatis mutandis this Guarantee.
Dated 7th day of December, 1995
See Original for Signatures
---------------------------
FOR AND ON BEHALF OF
I-CO GLOBAL COMMUNICATIONS
(HOLDINGS) LIMITED
See Original for Signatures
---------------------------
FOR AND ON BEHALF OF
HUGHES SPACE AND COMMUNICATIONS
INTERNATIONAL, INC
233
1 JULY 1996 - AMENDMENT 1
4.7.2.8
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
EXHIBIT H
HUGHES GUARANTEE
7 DECEMBER 1995
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CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
EXHIBIT H
HUGHES GUARANTEE
7 DECEMBER 1995
235
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT ("Guarantee") dated as of December ___, 1995, between HUGHES
ELECTRONICS CORPORATION, a Delaware corporation ("Guarantor") and ICO GLOBAL
COMMUNICATIONS (OPERATIONS) LIMITED, a company incorporated in the Cayman
Islands as an Exempted Company having its registered office at the Huntlaw
Building, P.O. Box 1350, Fort Street, Georgetown, Grand Cayman, Cayman Islands
("Beneficiary").
For value received, and to induce Beneficiary to enter into that certain
Contract for Launch Services Supply and Management, dated December ___, 1995
(the "Contract") with HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a
Delaware corporation and an indirect wholly-owned subsidiary of Guarantor
("Obligor"), Guarantor agrees with Beneficiary as follows:
1. Guarantee. Guarantor undertakes and guarantees the full, prompt and
complete performance by Obligor of all its obligations under the
Contract and the due and punctual payment of all sums which are payable
by the Obligor to the Beneficiary under the Contract when the same shall
become due and undertakes with the Beneficiary that if the Obligor shall
default in the payment of any sum which is due and payable to
Beneficiary under the Contract, the Guarantor shall pay such sum to
Beneficiary, within ten (10) days after demand in writing by
Beneficiary. Guarantor's obligations to Beneficiary under this Guarantee
shall in each case be subject to all the relevant terms and conditions
of the Contract and applicable law and nothing in this Guarantee shall
be deemed to constitute a waiver by the Obligor or the Guarantor of any
defense, claim or counterclaim available to the Obligor under the
Contract or under applicable law. Subject to paragraph 2 below,
Guarantor's sole obligation to Beneficiary under this Guarantee shall be
as guarantor of the obligations of Obligor under the Contract, subject
to all of the limitations on such obligations which are provided for in
such Contract or under applicable law (except for such limitations as
may arise as the result of a bankruptcy, insolvency or reorganization
proceeding of Obligor).
2. The Guarantor hereby unconditionally and irrevocably agrees as a
separate, continuing and primary obligation to indemnify the Beneficiary
on demand should any amount due under Clause 1 not be recoverable from
the Guarantor on the basis of a guarantee for any reason whatsoever.
3. Continuing Guarantee. The Guarantee in paragraph 1 is a continuing
guarantee and shall remain in force until all obligations of the Obligor
under the Contract have been fully performed and all sums payable by the
Obligor have been fully paid, in each case in accordance with the
Contract and subject to all the provisions therein contained.
4. Waivers of Notice, etc. The obligations of the Guarantor under this
Guarantee shall not be affected by any act, omission, matter or thing
which, but for this provision, might operate to release or otherwise
exonerate the Guarantor from its obligations or affect such obligations
including without limitation and whether or not known to Guarantor.
(a) any time, indulgence, waiver or consent at any time given to the
Obligor or any other person;
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LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
(b) any compromise or release of or abstention from perfecting or
enforcing any right or remedy against the Obligor or any other
person;
(c) any legal limitation, disability, incapacity or other
circumstance relating to Obligor or any other person or any
amendment to or variation of the terms of the Contract or any
other document referred to in the Contract;
(d) any change in the corporate relationship between the Obligor and
Guarantor, including any merger, consolidation or sale of assets
of Obligor, and
(e) any irregularity, unenforceability or invalidity of any
obligations of the Obligor under the Contract or the
dissolution, reconstruction or insolvency of the Obligor.
5. No Waiver by Beneficiary. No failure on the part of the Beneficiary, or
delay by Beneficiary, in exercising any right under or with respect to
this Guarantee shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right of Beneficiary under
or with respect to this Guarantee or the Contract.
6. Any release, compromise or discharge of the obligations of the Guarantor
under this Guarantee shall be deemed to be made subject to the condition
that it will be void if any payment or security which the Beneficiary
may receive or have received is set aside or proves invalid for whatever
reason.
7. All payments to be made by the Guarantor to the Beneficiary under this
Guarantee shall be made on the due date in United States Dollars and in
cleared funds and to such accounts as the Beneficiary shall specify and
shall made free and clear of, and without deduction for or on account
of, any present or future taxation, unless the Guarantor is required by
law or regulation to make payment subject to any taxation, in which
event such payment shall be increased by such amount as may be necessary
to ensure that the Beneficiary receives a net amount, which, after
deducting or withholding such taxation, is equal to the full amount
which the Beneficiary would have received had such payment not been
subject to such taxation.
8. Right of Subrogation. Guarantor shall be subrogated to the Rights of the
Beneficiary against Obligor in respect of any amounts paid by Guarantor
to Beneficiary pursuant to the provisions of this Guarantee; provided,
however, that Guarantor shall not be entitled to enforce or receive any
payments arising out of, or based upon, such right of subrogation, or
any related claim for exoneration, indemnification or reimbursement that
Guarantor may now have or hereafter acquire against Obligor in any way
related to or arising from the obligations of Obligor under the
Contract, until all such obligations shall have been paid and performed
in accordance with the terms and conditions of the Contract or
applicable law.
237
1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
9. Attorneys' Fees and Costs. In addition to the liability otherwise
assumed in this Guarantee, Guarantor agrees to forthwith reimburse
Beneficiary for all costs and expenses, including all reasonable
attorneys' fees and costs, incurred by Beneficiary in the collection or
enforcement of any liability under this Guarantee. However, if Guarantor
is the prevailing party in any proceeding to collect on or enforce any
liability under this Guarantee, Beneficiary agrees to forthwith
reimburse Guarantor for all costs and expenses, including all reasonable
attorney' fees and costs, which Guarantor may incur in connection with
any such proceeding, and Guarantor shall have no liability to
Beneficiary under the preceding sentence in this paragraph 6 in any such
proceeding.
10. Amendments. This Guarantee and any provision hereof may be waived,
amended, modified or supplemented as between beneficiary and Guarantor
only by an agreement or instrument in writing executed by Guarantor and
Beneficiary; and neither this Guarantee near any provision hereof shall
be varied, contradicted or explained by an oral agreement, course of
dealing or performance, usage of trade or any other matter not set forth
in an agreement or instrument in writing and executed as specified
above.
11. Notices.
11.1 Any notice, demand or other communication required or permitted
to be made hereunder shall be in writing and signed by or on
behalf of the person giving it. Except in the case of personal
service, any notice shall be sent or delivered to the party to
be served at the address or to the facsimile number set out
below and if a person or officer is named for the purpose, the
notice shall be marked for his attention. Any alteration in such
details shall, to have effect, be notified the other parties in
accordance with this clause.
11.2 Service of a notice must be effective by one of the following
methods:
11.2.1 personally on the Chief Executive Officer or the Company
Secretary either party and shall be treated as served at
the time of such notice:
11.2.2 by prepaid first class post (or by airmail if from one
country to another and shall be treated as served on the
second (or if by airmail fourth) Business day (as
defined in the Contract) after date of posting. In
proving service it shall be sufficient to prove at the
envelope containing the notice was correctly addressed,
postage paid and posted; or
11.2.3 by delivery of the notice through the letterbox of the
party to be served or by sending it by facsimile and
shall be treated as served on the first Business Day
after the date of such delivery or sending. In proving
service by facsimile it shall be sufficient to prove
that the facsimile was preceded by the answerback code
of the party to whom it was sent.
238
1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
A. In respect of the Beneficiary, to:
ICO Global Communications (Operations) Ltd.
c/o ICO Services Limited
1 Queen Caroline Street
London W69BN
United Kingdom
Telephone: (181) 600-1000
Facsimile: (181) 600-1199
Attention: Olof Lundberg
B. In respect of the Guarantor, to:
Hughes Space and Communications International, Inc.
Bldg. S10, Mail Station S350
Post Office Box 92919, Airport Station
Los Angeles, California 90009
Telephone: (310) 364-5729
Facsimile: (310) 364-7990
Attention: Dennis R. Beeson
Manager, Contracts
239
1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT H
Contract No: ICOO/95-1003/YW HUGHES GUARANTEE
- --------------------------------------------------------------------------------
12. Applicable law and jurisdiction.
12.1 This Guarantee shall be governed by and construed in accordance
with the laws of England.
12.2 The provisions of ARTICLE 30 (Disputes and Arbitration) of the
Contract shall apply mutatis mutandis to this Guarantee.
Dated _____ day of December, 1995
See Original for Signatures
---------------------------
for and on behalf of
ICO GLOBAL COMMUNICATIONS
(OPERATIONS) LTD.
See Original for Signatures
---------------------------
for and on behalf of
HUGHES ELECTRONICS
CORPORATION
240
1 JULY 1996 - AMENDMENT 1
4.7.2.9
CONTRACT NUMBER; ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
EXHIBIT I
TERMINATION LIABILITY CALCULATION
7 DECEMBER 1995
241
1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
1 Termination Calculations ..................................... 1
2 Termination Liabilities ...................................... 3
2.1 Atlas IIAS Termination Liability ............................. 3
Delta-III Termination Liability .............................. 3
Proton Termination Liability ................................. 4
Zenit Termination Liability .................................. 4
2.2 Effect of Atlas Launch Service Postponement .................. 4
2.3 Effect of Sea Launch Launch Service Postponement ............. 5
2.4 Effect of Proton Launch Service Postponement ................. 5
2.5 Effect of Delta-III Launch Service Postponement .............. 6
2.6 Delta-III Termination Liability Mitigation ................... 6
2.7 Alternate Launch Service Provider(s) ......................... 7
242
1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
1 TERMINATION CALCULATIONS
CALCULATION 1. If the Termination Liability in ARTICLE 17 of the
Contract ("Termination Liability') is to be calculated in accordance
with CALCULATION 1, then the Termination Liability of ICOGC to Hughes
for each terminated Service shall equal the amount derived from the
formula below:
Launch Service Cost x the relevant Termination Liability
Percentage defined herein.
CALCULATION 2. If the Termination Liability in ARTICLE 17 of the
Contract is to be calculated in accordance with CALCULATION 2, then the
Termination Liability of ICOGC to Hughes for each terminated Launch
Service shall equal the amount derived from the applicable formula
below:
1) For each Launch Service provided via a Longterm Launch Service
Agreement:
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 1
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1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
2) For each Launch Service provided via a unique Launch Service
Agreement:
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 2
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1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
2. TERMINATION LIABILITIES
2.1 Termination Liabilities for each terminated Launch Service provided via
a Longterm Launch Services Agreement shall be as follows:
Atlas IIAS Termination Liability
*
Delta-III Termination Liability
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 3
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1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
Proton Termination Liability
*
Zenit Termination Liability
*
2.2 Effect of Atlas Launch Service Postponement. In the event that the Atlas
Launch Service Provider declares a delay to the Launch Slot or Launch
Period, the revised Launch Period as agreed between Hughes and the Atlas
Launch Service Provider shall be used for the purpose of determining the
appropriate percentage to utilize in calculating the applicable
termination charge. In the event that Hughes or ICOGC declare
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 4
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1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
delay to the Launch Period or Launch Slot, the Launch Period or Launch
Slot in effect prior to the declaration of delay shall be used for the
purpose of determining the appropriate percentage to utilize in
calculating the applicable to termination charge.
2.3 Effect of Sea Launch Launch Service Postponement. If Sea Launch declares
or experiences a postponement for any Launch Service, the revised Launch
Period, Launch Slot or Launch Date (as applicable) shall be used for the
purpose of determining the appropriate percentage to utilize in
calculating the Termination Liability for the postponed Launch
Service(s). In the event that Hughes or ICOGC declares a delay to Zenit
Launch Service, (i) the Termination Liability value for the postponed
Launch Service, as of the date of postponement, shall be calculated
utilizing the applicable table above and shall remain constant (i.e. not
increase) during the applicable postponement period; and (ii) upon
conclusion of the postponement period, a Termination liability for the
postponed Launch Service shall again increase based upon the applicable
Termination Liability table above and the revised Launch Period, Launch
Slot or Launch Date (as applicable) as agreed between Hughes and the
Zenit Launch Service Provider.
2.4 Effect of Proton Launch Service Postponement. If the Proton Launch
Service Provider declares or experiences a postponement for any Launch
Service, the revised Launch Period, Launch Slot or Launch Date (as
applicable) shall be used for the purpose of determining the appropriate
percentage to utilize in calculating the Termination Liability for the
postponed Launch Service(s). In the event that Hughes or ICOGC declares
a delay to a Proton Launch Service, i) the Termination Liability value
for the postponed Launch Service, as of the date of postponement, shall
be calculated utilizing the applicable table above and shall remain
constant (i.e. not increase) during the applicable postponement period;
and ii) upon conclusion of the postponement period, the Termination
Liability for the postponed Launch Service shall again increase based
upon the applicable Termination Liability table above and the revised
Launch Period, Launch Slot or Launch Date (as applicable) as agreed
between Hughes and the Proton Launch Service Provider.
Page 5
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1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
2.5 Effect of Delta-III Launch Service Postponement. If the Delta-III Launch
Service Provider declares or experiences a postponement for any Launch
Service, the revised Launch Period, Launch Slot or Launch Date (as
applicable) shall be used for the purpose of determining the appropriate
percentage to utilize in calculating the Termination Liability for the
postponed Launch Service(s). In the event that Hughes or ICOGC declares
a delay to a Delta-III Launch Service prior to Launch minus 24 months,
i) the Termination Liability value for the postponed Launch Service, as
of the date of postponement shall be calculated utilizing the applicable
table above and shall remain constant (i.e. not increase) during the
applicable postponement period; and ii) upon conclusion of the
postponement period, the Termination Liability for the postponed Launch
Service shall again increase based upon the applicable Termination
Liability table above and the revised Launch Semester as agreed between
Hughes and the Delta-III Launch Service Provider. In a event that
Hughes or ICOGC declare a delay to a Delta-III Launch Service after
Launch minus 24 months, the Launch Period or Launch Slot in effect prior
to the declaration of delay shall be used for the purpose of determining
the appropriate percentage to utilize in calculating the applicable
termination charge.
2.6 Delta-III Termination Liability Mitigation. If any Delta-III Launch
Service is terminated by ICOGC for convenience, then ICOGC shall be
entitled to receive an equitable adjustment to the Termination Liability
amount if any Hardware (for the purposes of this Paragraph, Hardware is
defined as the affected Launch Vehicle(s) or any portion thereof) is
subsequently utilized for Launch Services for any third party customer
of the Delta-III Launch Service Provider. Upon the transfer or
utilization of any Hardware (as defined in EXHIBIT C) for a Launch
Service for such third party customer, the Parties and the Delta-III
Launch Service Provider shall negotiate in good faith to determine the
amount of the applicable equitable adjustment. Such applicable equitable
adjustment shall account for, via exclusion, the Launch Service
Provider's reasonable costs, including but not limited to inventory
carrying fees, unrecoverable costs, reasonable re-programming costs, and
the Launch Service Provider's profit which would have been same had a
Launch Service not been terminated, for each terminated
Page 6
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1 JULY 1996 - AMENDMENT 1
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT EXHIBIT I
Contract No: ICOO/95-1003/YW TERMINATION LIABILITY CALCULATION
- --------------------------------------------------------------------------------
Launch. Any equitable adjustment shall be payable by Launch Service
Provider within thirty (30) days of the later of i) the completion of
good faith negotiations between the Parties; or ii) the sale of the
eleventh Delta III Launch Service by the Launch Service Provider, to any
party, excluding any Launch terminated herein. Hughes shall forward to
ICOGC any equitable adjustment value derived in accordance with the
paragraph within five (5) Business Days of receipt of such amount from
the Delta Launch Service Provider.
2.7 Alternate Launch Service Provide Provider(s). Termination Liability
percentages/amounts for Launch Services not provided via a Longterm
Launch Service Agreement shall be incorporated into this EXHIBIT I upon
the execution of a Launch Service Agreement between Hughes and the
relevant Launch Service Provider (such agreement must be approved by
ICOGC prior to execution).
Page 7
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16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT CONTRACT NO: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
CONTRACT NUMBER: ICOO/95-1003/YW
AMENDMENT 2
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS)
LIMITED
HUGHES SPACE AND COMMUNICATIONS
INTERNATIONAL, INC.
7 DECEMBER 1995
250
16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT CONTRACT NO. ICOO/95-1003/YW
- --------------------------------------------------------------------------------
point in time during the launch countdown when initiation of the gas
generator ignitors firing command and firing of any of the gas generator
ignitors occurs.
O "Launch" means;
for Atlas Launch Services, the Intentional Ignition of the first stage
engines of the Launch Vehicle carrying the Satellite followed by either
release of the Launch Vehicle from the launcher holddown restraints or
Satellite and Launch Vehicle damage or destruction sufficient so that
both the Satellite and the Launch Vehicle are declared total losses; or
for Delta-III Launch Services, the Intentional Ignition of the first
stage solid rocket motors of the Delta III Launch Vehicle; or
for Proton Launch Services, the Intentional Ignition of the first stage
engines of a Launch Vehicle carrying a Satellite, followed by physical
separation of the Launch Vehicle from the ground support equipment,
unless such event constitutes a Terminated Ignition (as such term is
defined in EXHIBIT D); or
for Zenit Launch Services, the point in time when an electronic signal
is sent to command the opening of any first stage propellant valves. A
launch is deemed to have occurred even if there is a Total Failure,
Total Constructive Failure or Partial Failure of the Launch Vehicle (as
such terms are defined in EXHIBIT E);
P "Launch Date" means the single Day on which the relevant Launch
Service(s) shall be performed by the Launch Service Provider.
Q "Launch Period" means the three (3) Month period in which the relevant
Launch Service shall be performed by the Launch Service Provider. In the
case of Atlas Launch Services, the Launch Period shall be a four (4)
Month period.
R "Launch Revision Fees" means any amount payable by Hughes to a Launch
Service Provider as a consequence of the implementation, for any reason,
in accordance with
- --------------------------------------------------------------------------------
Page 4
251
16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT CONTRACT NO: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
ARTICLE 3 LAUNCH SCHEDULING
3.1 Launch Manifest. In accordance with the provisions of this Contract,
Hughes shall utilize the Launch Service Provider(s) and Launch Dates
specified in Table 1 below in establishing the baseline Launch Services
manifest (set out as Table 1 below) on behalf of ICOGC:
TABLE 1: BASELINE LAUNCH SERVICES MANIFEST
- ---------------------------------------------------------------------------------------------------------------
LAUNCH LAUNCH SERVICE PROVIDER(1) LAUNCH LTA(2) LAUNCH TARGET
VEHICLE LAUNCH # PERIOD LAUNCH
DATE(S)
- ---------------------------------------------------------------------------------------------------------------
1 Lockheed Martin Atlas-IIAS *
Commercial Launch Services
- ---------------------------------------------------------------------------------------------------------------
2 Lockheed-Krunichev-Energia Proton *
International
- ---------------------------------------------------------------------------------------------------------------
3 Lockheed-Krunichev-Energia Proton *
International
- ---------------------------------------------------------------------------------------------------------------
4 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------
5 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------
6 Sea Launch Limited Partnership Zenit *
- ---------------------------------------------------------------------------------------------------------------
7 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------
8 Sea Launch Limited Partnership Zenit *
- ---------------------------------------------------------------------------------------------------------------
9 Lockheed-Krunichev-Energia Proton *
International
- ---------------------------------------------------------------------------------------------------------------
10 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------
11 Sea Launch Limited Partnership Zenit *
- ---------------------------------------------------------------------------------------------------------------
12 McDonnell Douglas Corporation Delta-III *
- ---------------------------------------------------------------------------------------------------------------
1: Indicated Launch Services are provided through a Longterm Launch Service
Agreement between Hughes and the relevant Launch Service Provider(s).
2: The referenced Launch Number ("Launch #") indicates what type of Launch
Service (i.e. Firm or Option) and which Launch Service or Launch Semester
(i.e. Number 5 of 10 purchased by Hughes) shall be provided by Hughes to
I-COGC.
The procedures between Hughes and the Launch Service Providers for
determining a Launch Period, Slot or Day are as set out in Exhibits B through E
as applicable (or as
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
- --------------------------------------------------------------------------------
Page 9
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16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT CONTRACT NO: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Date Revised Letter of Credit Amount
- ---- -------------------------------
*
ICOGC shall notify Hughes within five (5) Days of any recommended adjustments to
the amount of the Letter of Credit.
In the event ICOGC has not made a payment for a milestone within fifteen (15)
Days after the receipt of Hughes' invoice and milestone completion certification
when pursuant to ARTICLE 4.5 it was obligated to do so, the irrevocable Letter
of Credit shall allow Hughes to immediately draw down an amount which Hughes
certifies as the outstanding amount payable for that milestone.
ICOGC will be responsible for all bank charges, expenses, and commissions
relating to the irrevocable Letter of Credit required to be issued hereunder on
Hughes' behalf save as may be incurred as a result of a delay in the last
milestone payment beyond 01 January 2001 caused by a late Delivery by Hughes of
the relevant Satellite or the associated deliverables beyond their respective
Delivery Dates (where that delay
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
253
16 JUNE 1997 - AMENDMENT 2
CONTRACT NUMBER: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
--------------------------------
Exhibit F
Milestone Payment Plan
--------------------------------
7 December 1995
254
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 1
255
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 2
256
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 3
257
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 4
258
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 5
259
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 6
260
Exhibit F, Milestone Payment Plan (US$) 16 June 1997 - Amendment 2
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 7
261
4.7.1.3
AMENDMENT NUMBER 2
TO THE
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS)
LIMITED
&
HUGHES SPACE AND COMMUNICATIONS
16 JUNE 1997
Contract Number: ICOO/95-1003/YW
This document is to be protected from the risks of unauthorized disclosure,
loss, misappropriation and alteration. Although not marked "Hughes Proprietary"
because of contractual reasons, it should not be disclosed to any individual(s)
unless the recipient meets the "need to know" criteria. This document should be
handled exactly like any other "Hughes Proprietary" document.
262
AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No. ICOO/95-1003/YW
- --------------------------------------------------------------------------------
AMENDMENT NUMBER 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT (ICOO/95-1003/YW)
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED
AND
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
This Amendment Number 2 to the Launch Services Supply and Management Contract
ICOO/95-1003/YW dated and signed on 7 December 1995 (hereinafter referred to as
"the Contract") is made on this 7th day of July 1997 by and between
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED, a company incorporated in the
Cayman Islands as an Exempted Company having its registered office at the
Huntlaw Building, PO Box 1350, Fort Street, Georgetown, Grand Cayman, Cayman
Islands (hereinafter referred to as "ICOGC"); and
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a company incorporated
under the laws of the State of Delaware, USA, with a place of business in El
Segundo, California USA, (hereinafter referred to as "Hughes").
WHEREAS: ICOGC and Hughes have previously entered into the Contract for
provision of Launch Services and Management Services, and
263
AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No. ICOO/95-1003/YW
- --------------------------------------------------------------------------------
WHEREAS: ICOGC and Hughes have previously incorporated Amendment Number 1 to the
Contract on 5 July 1996, and
WHEREAS: ICOGC and Hughes have reached agreement to modify certain Contract
Articles and Contract Exhibits,
NOW THEREFORE, in consideration of the agreement between the Parties, the
Parties agree that the Contract is amended as follows below:
1. Revise the Contract Articles by:
a. Revising the Definition for "Launch Period" (Definition
Q).
b. Revising Table 1 on page 9.
c. Revising Article 4.10 on page 29.
2. Delete the EXHIBIT F, MILESTONE PAYMENT PLAN, dated 1 July 1996
and replace it with the revised EXHIBIT F, MILESTONE PAYMENT
PLAN, dated 16 June 1997.
The revised pages of the Contract Articles and the revised EXHIBIT F are
attached and made a part hereof. For clarity and continuity, the revised pages
of the Contract Articles and all pages of the revised exhibit F have been marked
"Amendment 2" and "16 June 1997' in the upper right hand corner.
This Amendment Number 2 results in no change to the Contract price.
264
AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No. ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Save as provided for in this Amendment Number 2, the Contract, including all
Exhibits thereto, shall otherwise remain unchanged.
IN WITNESS WHEREOF, this Amendment Number 2 has been duly executed by the
Parties on the date stated above.
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ H.E. McDONNELL
-----------------------------------------
(signed)
H.E. McDonnell
-----------------------------------------
(printed)
Title: Vice President, Commercial
-----------------------------------------
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED
By: /s/ OLOF LUNDBERG
-----------------------------------------
(signed)
OLOF LUNDBERG
-----------------------------------------
(printed)
Title: CEO
-----------------------------------------
265
16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No. ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Contract Number: ICOO/95-1003/YW
AMENDMENT 2
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS)
LIMITED
&
HUGHES SPACE AND COMMUNICATIONS
INTERNATIONAL, INC.
7 DECEMBER 1995
THIS DOCUMENT IS TO BE PROTECTED FROM THE RISKS OF UNAUTHORIZED DISCLOSURE,
LOSS, MISAPPROPRIATION AND ALTERATION. ALTHOUGH NOT MARKED "HUGHES PROPRIETARY"
BECAUSE OF CONTRACTUAL REASONS, IT SHOULD NOT BE DISCLOSED TO ANY INDIVIDUAL(S)
UNLESS THE RECIPIENT MEETS THE "NEED TO KNOW" CRITERIA. THIS DOCUMENT SHOULD BE
HANDLED EXACTLY LIKE ANY OTHER "HUGHES PROPRIETARY" DOCUMENT.
266
16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT ICOO/95-1003/YW
- --------------------------------------------------------------------------------
point in time during the launch countdown when initiation of the gas
generator ignitors firing command and firing of any of the gas generator
ignitors occurs.
O "Launch" means;
for Atlas Launch Services, the Intentional Ignition of the first stage
engines of the Launch Vehicle carrying the Satellite followed by either
release of the Launch Vehicle from the launcher holddown restraints or
Satellite and Launch Vehicle damage or destruction sufficient so that
both the Satellite and the Launch Vehicle are declared total losses; or
for Delta-III Launch Services, the Intentional Ignition of the first
stage solid rocket motors of the Delta III Launch Vehicle; or
for Proton Launch Services, the Intentional Ignition of the first stage
engines of a Launch Vehicle carrying a Satellite, followed by physical
separation of the Launch Vehicle from the ground support equipment,
unless such event constitutes a Terminated Ignition (as such term is
defined in EXHIBIT D); or
for Zenit Launch Services, the point in time when an electronic signal
is sent to command the opening of any first stage propellant valves. A
launch is deemed to have occurred even if there is a Total Failure,
Total Constructive Failure or Partial Failure of the Launch Vehicle (as
such terms are defined in EXHIBIT E);
P "Launch date" means the single day on which the relevant Launch
Service(s) shall be performed by the Launch Service Provider.
Q "Launch Period" means the three (3) Month period in which the relevant
Launch Service shall be performed by the Launch Service Provider. In
the case of Atlas Launch Services, the Launch Period shall be a four (4)
Month period.
R "Launch Revision Fees" means any amount payable by Hughes to a Launch
Service Provider as a consequence of the implementation, for any reason
accordance with
- --------------------------------------------------------------------------------
Page 4
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16 June 1997 - Amendment 2
Launch Services and Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
ARTICLE 3 LAUNCH SCHEDULING
3.1 Launch Manifest. In accordance with the provisions of this Contract,
Hughes shall utilize the Launch Service Provider(s) and Launch Dates
specified in Table 1 below in establishing the baseline Launch
Services manifest (set out as Table 1 below) on behalf of ICOGC:
TABLE 1: BASELINE LAUNCH SERVICES MANIFEST
- ------------------------------------------------------------------------------------------------------------------------------------
LAUNCH LAUNCH SERVICE PROVIDER(1) LAUNCH LTA(2) LAUNCH TARGET
VEHICLE LAUNCH # PERIOD LAUNCH
DATE(S)
- ------------------------------------------------------------------------------------------------------------------------------------
1 Lockheed Martin Atlas-IIAS *
Commercial Launch Services
- ------------------------------------------------------------------------------------------------------------------------------------
2 Lockheed-Krunichev-Energia Proton *
International
- ------------------------------------------------------------------------------------------------------------------------------------
3 Lockheed-Krunichev-Energia Proton *
International
- ------------------------------------------------------------------------------------------------------------------------------------
4 McDonnell Douglas Corporation Delta-III *
- ------------------------------------------------------------------------------------------------------------------------------------
5 McDonnell Douglas Corporation Delta-III *
- ------------------------------------------------------------------------------------------------------------------------------------
6 Sea Launch Limited Partnership Zenit *
- ------------------------------------------------------------------------------------------------------------------------------------
7 McDonnell Douglas Corporation Delta-III *
- ------------------------------------------------------------------------------------------------------------------------------------
8 Sea Launch Limited Partnership Zenit *
- ------------------------------------------------------------------------------------------------------------------------------------
9 Lockheed-Krunichev-Energia Proton *
International
- ------------------------------------------------------------------------------------------------------------------------------------
10 McDonnell Douglas Corporation Delta-III *
- ------------------------------------------------------------------------------------------------------------------------------------
11 Sea Launch Limited Partnership Zenit *
- ------------------------------------------------------------------------------------------------------------------------------------
12 McDonnell Douglas Corporation Delta-III *
- ------------------------------------------------------------------------------------------------------------------------------------
1: Indicated Launch Services are provided through a Longterm Launch Service Agreement between Hughes and the relevant
Launch Service Provider(s)
2: The referenced Launch Number ("Launch #") indicates what type of Launch Service (i.e. Firm or Option) and which Launch
Service or Launch Semester (i.e. Number 5 of 10 purchased by Hughes) shall be provided by Hughes to I-COGC.
- ------------------------------------------------------------------------------------------------------------------------------------
The procedure between Hughes and the Launch Service Providers for
determining a Launch Period, Slot or Day are as set out in Exhibits B
through E as applicable (or as
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
- --------------------------------------------------------------------------------
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268
16 JUNE 1997-AMENDMENT NUMBER 2
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT Contract No. ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Date Revised Letter of Credit Amount
- ---- -------------------------------
*
ICOGC shall notify Hughes within five (5) Days of any recommended adjustments to
the amount of the Letter of Credit.
In the event ICOGC has not made a payment for a milestone within fifteen (15)
Days after the receipt of Hughes' invoice and milestone completion certification
when pursuant to ARTICLE 4.5 was obligated to do so, the irrevocable letter of
Credit shall allow Hughes to immediately draw down an amount which Hughes
certifies as the outstanding amount payable for that milestone.
ICOGC will be responsible for all bank charges, expenses,and commissions
relating to the irrevocable Letter of Credit required to be issued hereunder on
Hughes' behalf save as may be incurred as a result of a delay in the last
milestone payment beyond 01 January 2001 caused by a late Delivery by Hughes of
the relevant satellite or the associated deliverables beyond their respective
Delivery Dates (where that delay
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 29
269
16 JUNE 1997 - AMENDMENT 2
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
-------------------------
EXHIBIT F
MILESTONE PAYMENT PLAN
-------------------------
7 DECEMBER 1995
THIS DOCUMENT IS TO BE PROTECTED FROM THE RISKS OF UNAUTHORIZED DISCLOSURE,
LOSS, MISAPPROPRIATION AND ALTERATION. ALTHOUGH NOT MARKED "HUGHES PROPRIETARY"
BECAUSE OF CONTRACTUAL REASONS, IT SHOULD NOT BE DISCLOSED TO ANY INDIVIDUAL(S)
UNLESS THE RECIPIENT MEETS THE "NEED TO KNOW" CRITERIA. THIS DOCUMENT SHOULD BE
HANDLED EXACTLY LIKE ANY OTHER "HUGHES PROPRIETARY" DOCUMENT.
270
* [EXHIBIT F AMENDMENT 2 PAGES 1 - 7 HAVE BEEN REDACTED]
* Confidential Treatment Requested and the Redacted Material has
been separately filed with the Commission.
271
*
272
*
273
*
274
*
275
*
276
*
277
4.7.1.4
22 May 1998 - Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Contract Number: ICOO/95-1003/YW
Amendment 3
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS)
LIMITED
&
HUGHES SPACE AND COMMUNICATIONS
INTERNATIONAL, INC.
7 December 1995
278
Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
AMENDMENT NUMBER 3
LAUNCH SERVICES SUPPLY AND MANAGEMENT CONTRACT (ICOO/95-1003/YW)
BETWEEN
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED
AND
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC.
This Amendment Number 3 to the Launch Services Supply and Management Contract
ICOO/95-1003/YW dated and signed on 7 December 1995 (hereinafter referred to as
"the Contract") is made on this 7 day of August 1998 by and between
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED, a company incorporated in the
Cayman Islands as an Exempted Company having its registered office at the
Huntlaw Building, PO Box 1350, Fort Street, Georgetown, Grand Cayman, Cayman
Islands (hereinafter referred to as "ICOGC"); and
HUGHES SPACE AND COMMUNICATIONS INTERNATIONAL, INC., a company incorporated
under the laws of the State of Delaware, USA, with a place of business in El
Segundo, California USA, (hereinafter referred to as "Hughes").
WHEREAS: ICOGC and Hughes have previously entered into the Contract for
provision of Launch Services and Management Services, and
Page 1
279
Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
WHEREAS: ICOGC and Hughes have previously incorporated Amendment Number 1 to the
Contract on 5 July 1996 and Amendment Number 2 to the Contract on 7 July 1997,
and
WHEREAS: ICOGC and Hughes have reached agreement to modify certain Contract
Articles and Contract Exhibits,
NOW THEREFORE, in consideration of the agreement between the Parties, the
Parties agree that the Contract is amended as follows below:
1. Revise the Contract Articles by:
a. Deleting Article 4.10.
2. Delete the EXHIBIT F, MILESTONE PAYMENT PLAN, dated 16 June 1997
and replace it with the revised EXHIBIT F, MILESTONE PAYMENT
PLAN, dated 22 May 1998.
The revised pages of the Contract Articles and the revised EXHIBIT F are
attached and made a part hereof. For clarity and continuity, the revised pages
of the Contract Articles and all pages of the revised Exhibit F have been marked
"Amendment 3" and "22 May 1998" in the upper right hand corner.
This Amendment Number 3 results in no change to the Contract price.
Save as provided for in this Amendment Number 3, the Contract, including all
Exhibits thereto, shall otherwise remain unchanged and constitute the complete
and exclusive statement of the terms of the agreement between I-COGC and Hughes
and supersede all prior agreements, representations, understandings, and
communications relating thereto.
Page 2
280
Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
IN WITNESS WHEREOF, this Amendment Number 3 has been duly executed by the
Parties on the date stated above.
HUGHES AND COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ D.L. CROMER
-------------------------------
(signed)
D.L. Cromer
-------------------------------
(printed)
Title: CHAIRMAN
-------------------------------
ICO GLOBAL COMMUNICATIONS (OPERATIONS) LIMITED
By: /s/ O. LUNDBERG
-------------------------------
(signed)
O. Lundberg
-------------------------------
(printed)
Title: C.E.O.
-------------------------------
Page 3
281
22 May 1998 - Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
4.6 Payment Postponements. If any postponement of a Launch Service results
in the postponement or delay of any payment(s) under a Launch Service
Agreement for the postponed Launch Service, the payment schedule
specified in EXHIBIT F, MILESTONE PAYMENT PLAN, shall be revised to
reflect such delayed payment(s).
4.7 Payment Dispute. No dispute with respect to the payment of any amount
under this Contract shall relieve the disputing Party of its obligation
to pay all other amounts due and owing under this Contract. All disputed
amounts, unless otherwise specified in the Contract, shall be paid into
an interest-bearing escrow account at Bank of America, Concord,
California, Account No. (to be established later), within fifteen (15)
Days after receipt of invoice. After the dispute is settled, the Party
entitled to the amount or part thereof in escrow shall receive such
amount together with all interest thereon and the costs and fees
associated with such escrow account shall be paid by each Party in
inverse proportion to the amounts received by each Party.
4.8 Telegraphic Transfer. Amounts payable hereunder are to be remitted by
telegraphic transfer to a bank to be advised in writing by Hughes or
I-COGC, as the case may be.
4.9 Guarantee. Within 15 pays of EDC, both Parties shall provide a parent
company guarantee of their obligations substantially in the form set
forth in EXHIBIT H, HUGHES GUARANTEE, and EXHIBIT G, I-COGC GUARANTEE.
Page 28
282
22 May 1998 - Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Page 29
283
22 May 1998 - Amendment 3
Launch Services Supply and Management Contract Contract No: ICOO/95-1003/YW
- --------------------------------------------------------------------------------
Page 30
284
4.7.1.5
22 May 1998 - Amendment 3
Contract No: ICOO/95-1003/YW
LAUNCH SERVICES SUPPLY AND
MANAGEMENT CONTRACT
Exhibit F
Milestone Payment Plan
7 December 1995
285
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 1
286
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 2
287
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 3
288
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 4
289
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 5
290
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 6
291
Exhibit F, Milestone Payment Plan (US$) 22 May 1998 - Amendment 3
Contract Number ICOO/95-1003/YW
*
* Confidential Treatment Requested and the Redacted Material has been
separately filed with the Commission.
Page 7