Exhibit 4.7
Amendment 2
AMENDMENT NUMBER 2
TO THE NSS-8 SPACECRAFT AND ASSOCIATED EQUIPMENT AND
SERVICES CONTRACT (NSS-20-03-01)
BETWEEN
NEW SKIES SATELLITES N.V.
AND
BOEING SATELLITE SYSTEMS INTERNATIONAL, INC.
This Amendment Number 2 to the NSS-8 Spacecraft and Associated Equipment and
Services Contract Number NSS-20-03-01 dated and signed on 21 March 2001, as
amended by one contract amendment, dated 15 January 2002 (as so amended,
hereinafter referred to as "the Contract") is made on this 12th day of February
2003 by and between
NEW SKIES SATELLITES N.V., a Dutch corporation, with its principal place of
business located at Rooseveltplantsoen #4, 2517KR The Hague, The Netherlands
(hereinafter referred to as "NSS"); and
BOEING SATELLITE SYSTEMS INTERNATIONAL, INC., a Delaware corporation, with its
principal place of business located at 2260 East Imperial Highway, El Segundo,
CA, U.S.A., (hereinafter referred to as "Contractor").
WHEREAS: NSS and Contractor have previously entered into the Contract for
provision of the NSS-8 communications satellite and other items, and
WHEREAS: NSS and Contractor have previously incorporated Amendment Number 1 to
the Contract on 15 January 2002, and
WHEREAS: NSS and Contractor have reached agreement to modify certain additional
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 following Contract Articles:
a. Article 3.A
b. Article 4.A
c. Article 5.H
d. Article 8.D.6
e. Article 10.B
f. Article 20
g. Article 29
h. Article 30.B
i. Article 30.C.2
j. Article 30.E
k. Article 34
l. Article 35
2. Add the following new Contract Articles:
a. Article 30.A.3
b. Article 36 (formerly Article 35)
3. Replace the original EXHIBIT A, NSS-8 SPACECRAFT PERFORMANCE
SPECIFICATION, dated March 2001 with the revised EXHIBIT A, NSS-8
SPACECRAFT PERFORMANCE SPECIFICATION, Revision A, dated January
2003.
4. Replace the original EXHIBIT B, NSS-8 STATEMENT OF WORK (SOW), dated
20 March 2001 with the revised EXHIBIT B, NSS-8 STATEMENT OF WORK,
Revision A, dated January 2003.
5. Replace the original EXHIBIT D, NSS-8 COMPREHENSIVE TEST PLAN, dated
20 March 2001 with the revised EXHIBIT D, NSS-8 COMPREHENSIVE TEST
PLAN, dated January 2003.
6. Replace the original EXHIBIT E, MILESTONE PAYMENT PLAN, dated 20
March 2001 with the revised EXHIBIT E, MILESTONE PAYMENT PLAN, dated
January 2003.
7. Replace the original EXHIBIT F, CRITERIA FOR CONDITIONAL ACCEPTANCE,
TOTAL CONSTRUCTIVE LOSS, AND ADJUSTMENT OF FIRM FIXED PRICE AND
IN-ORBIT INCENTIVES, dated 20 March 2001, with the revised EXHIBIT
F, CRITERIA FOR CONDITIONAL ACCEPTANCE, TOTAL CONSTRUCTIVE LOSS, AND
ADJUSTMENT OF FIRM FIXED PRICE AND IN-ORBIT INCENTIVES, dated
January 2003.
The composite compiled Satellite Contract and relevant EXHIBITS are attached and
made a part hereof. For clarity and continuity, the contract pages have been
marked "Amendment 2" and "January 2003" in the upper right hand corner.
This Amendment Number 2 results in a Contract price increase of US$ * .
Save as provided for in this Amendment Number 2, the Contract, including all
Exhibits thereto, shall otherwise remain unchanged.
This Amendment Number 2 may be signed in separate counterparts, each of which,
together, will constitute one agreement between the Parties.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
IN WITNESS WHEREOF, this Amendment Number 2 has been duly executed by the
Parties on the date stated above.
NEW SKIES SATELLITES N.V.
By: /s/ Daniel S. Goldberg
-------------------------------------
Daniel S. Goldberg
-------------------------------------
Title: CEO
-------------------------------------
BOEING SATELLITE SYSTEMS INTERNATIONAL, INC.
By: /s/ Dennis R. Beeson
-------------------------------------
Dennis R Beeson
-------------------------------------
Title: Contracts Manager
-------------------------------------
January 2003 - Amendment 2
NSS-8 Satellite Contract Contract Number: NSS-20-03-01
- --------------------------------------------------------------------------------
COMPOSITE COMPILED SATELLITE CONTRACT
between
NEW SKIES SATELLITES N.V.
Rooseveltplantsoen # 4
2517KR The Hague
The Netherlands
and
BOEING SATELLITE SYSTEMS INTERNATIONAL, INC.
2260 East Imperial Highway
El Segundo, CA
U.S.A.
for
NSS-8 Spacecraft
and Associated Equipment and Services
Contract No. NSS-20-03-01
Date: March 21, 2001
Confidential portions omitted and filed separately with the Commission
pursuant to a request for confidential treatment.
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS........................................................1
ARTICLE 2. SCOPE OF WORK/ORDER OF PRECEDENCE..................................7
A. Scope of Work............................................................7
B. Order of Precedence......................................................8
ARTICLE 3. ITEMS TO BE DELIVERED AND DELIVERY SCHEDULE........................9
A. Items/Promised Delivery Dates............................................9
B. Time of Essence.........................................................10
C. Contractor Responsibility...............................................10
ARTICLE 4. PRICES............................................................10
A. Total Firm Fixed Price..................................................10
B. Taxes...................................................................12
C. Adjustments.............................................................12
ARTICLE 5. METHOD OF PAYMENT.................................................14
A. Spacecraft Less Incentives..............................................14
B. Launch Services.........................................................15
C. Insurance...............................................................16
D. Operational In Orbit Incentives.........................................17
E. Prepayment of Operational In Orbit Incentives...........................18
F. Adjustment of Payments..................................................19
G. Disputed Payments.......................................................19
H. Currency/Place of Payment...............................................19
ARTICLE 6. DELIVERY, TITLE AND RISK OF LOSS OR DAMAGE........................20
A. Spacecraft Delivery.....................................................20
B. Delivery of Other Items.................................................20
C. Title................................................................21
ARTICLE 7. CERTIFICATION, INSPECTION, ACCEPTANCE, WAIVERS....................21
A. General Requirements....................................................21
B. Waivers.................................................................21
C. Inspections.............................................................22
D. Spacecraft Acceptance Procedure.........................................22
E. Acceptance Procedures for Other Items...................................23
F. Remedy of Defects.......................................................24
G. Post Acceptance Remedies................................................24
ARTICLE 8. LAUNCH SERVICES PROCUREMENT.......................................24
A. Procurement of Launch Services by Contractor............................24
B. Option for NSS To Procure Launch Services...............................26
C. Contractor Obligations..................................................27
D. Option To Change Launch Services........................................27
ARTICLE 9. INSURANCE.........................................................29
A. Launch Insurance........................................................29
B. Life Insurance..........................................................31
C. Incentives..............................................................31
ARTICLE 10. SUBCONTRACTS......................................................32
A. Subcontracts............................................................32
B. Key Subcontracts........................................................32
ARTICLE 11. PROPERTY ACCOUNTING...............................................33
A. Identification and Control..............................................33
B. Subcontractors..........................................................33
C. Inventory...............................................................33
ARTICLE 12. CHANGES REQUESTED BY CONTRACTOR OR NSS............................34
A. Contract Change Notice..................................................34
B. Acceptance of Change....................................................34
C. Non Refusal.............................................................34
D. Price of Changes........................................................35
E. Compressed Time Periods.................................................35
F. Changes To Meet Specifications..........................................35
ARTICLE 13. CONTRACT TECHNOLOGY...............................................35
A. Disclosure of Contract Technology.......................................35
B. Rights Granted in Contract Technology...................................36
C. Limitations.............................................................36
ARTICLE 14. RIGHT OF ACCESS, REPORTS, TESTING, MONITORING.....................36
A. Access..................................................................36
B. Reports.................................................................37
C. Performance Testing.....................................................37
D. Monitoring..............................................................38
E. Export Laws Compliance..................................................38
ARTICLE 15. WARRANTY..........................................................40
A. Warranty................................................................40
B. Remedies................................................................40
C. Warranty Period.........................................................40
D. Disclaimer..............................................................41
E. Not Exclusive Rights....................................................41
ARTICLE 16. DEFICIENCIES NOTED IN OTHER SPACECRAFT............................41
A. Qualification Heritage..................................................41
B. Notice..................................................................41
ARTICLE 17. TERMINATION FOR CONVENIENCE.......................................42
A. Termination.............................................................42
B. Termination Expense.....................................................42
C. Termination Charges.....................................................42
D. Subcontractor Settlements...............................................43
E. Inventory...............................................................43
F. Termination of Launch...................................................43
ARTICLE 18. TERMINATION FOR OTHER REASONS.....................................44
A. Termination by NSS for Cause............................................44
B. NSS Termination for Unsuccessful Launch.................................45
C. NSS Termination for Spacecraft Failure Prior to Delivery................45
D. NSS Termination for Excusable Delay.....................................46
E. Improper Termination....................................................46
F. Termination of Launch...................................................47
ARTICLE 19. EXCUSABLE DELAYS..................................................47
A. Non Launch Related Delays...............................................47
B. Launch Related Delays...................................................47
ARTICLE 20. KEY PERSONNEL.....................................................47
ARTICLE 21. DISPUTES..........................................................48
ARTICLE 22. INDEMNIFICATION...................................................49
A. General Indemnification.................................................49
B. Intellectual Property Indemnification...................................49
C. Indemnification For Taxes...............................................50
D. Procedures..............................................................50
ARTICLE 23. LIMITATION OF LIABILITY...........................................50
ARTICLE 24. DAMAGE TO PERSONS OR PROPERTY, ASSOCIATED WITH LAUNCH,
INTERPARTY WAIVER.................................................51
ARTICLE 25. REPRESENTATIONS AND WARRANTIES....................................51
A. Mutual Representations and Warranties...................................51
B. Contractor's Special Representations and Warranties.....................51
ARTICLE 26. ASSIGNMENT........................................................52
ARTICLE 27. CONFIDENTIALITY...................................................52
A. Identification of Proprietary Information...............................52
B. Restrictions on Use, Disclosure.........................................53
C. Company Restricted Information..........................................54
D. Standard of Care........................................................54
E. Property of Disclosing Party............................................54
ARTICLE 28. PUBLIC RELEASE OF INFORMATION.....................................54
ARTICLE 29. NOTICES AND REPORTS, AUTHORIZED REPRESENTATIVES...................54
ARTICLE 30. OPTIONS...........................................................56
A. Optional Spacecraft.....................................................56
B. Replacement Spacecraft..................................................59
C. Optional Storage and Retest.............................................60
D. Intentionally Omitted...................................................61
E. In-Orbit Test Location..................................................61
ARTICLE 31. NSS FURNISHED INFORMATION AND PROPERTY............................61
A. Title...................................................................61
B. Risk of Loss............................................................61
C. Use.....................................................................61
D. Taxes...................................................................61
E. Encumbrances............................................................62
F. Return..................................................................62
G. Damages.................................................................62
ARTICLE 32. HAZARDOUS MATERIAL IDENTIFICATION AND
MATERIAL SAFETY DATA..............................................62
ARTICLE 33. APPLICABLE LAWS...................................................62
ARTICLE 34. NOTIFICATION OF ANOMALY OCCURRENCE................................62
ARTICLE 35. GENERAL...........................................................64
A. Severability............................................................64
B. Cumulative Rights/Waivers...............................................64
C. Gender/Captions.........................................................64
D. Relationship of the Parties.............................................64
E. Construction............................................................65
F. Including/Time..........................................................65
G. Survival................................................................65
H. Entire Agreement........................................................65
Exhibit A - Spacecraft Performance Specifications
Exhibit B - Statement of Work
Exhibit C - Product Assurance Plan
Exhibit D - Test Plan
Exhibit E - Milestone Payment Plan
Exhibit F - Criteria for Conditional Acceptance
Exhibit G - Export Laws Compliance Program
Exhibit H - Maximum Termination Liability
Exhibit I - Reserved
Exhibit J - Bill of Sale
Exhibit K - Certificate of Performance
Exhibit L - Launch Services *
Exhibit M - * Spacecraft Baseline Specifications
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
January 2003 - Amendment 2
NSS-8 Satellite Contract Contract Number: NSS-20-03-01
- --------------------------------------------------------------------------------
CONTRACT FOR NSS-8 SPACECRAFT
AND ASSOCIATED EQUIPMENT AND SERVICES
THIS CONTRACT (the "Contract"), entered into as of this 21st day of
March, 2001 (the "Effective Date of Contract" or "EDC"), by and between Boeing
Satellite Systems International, Inc., a Delaware corporation, with its
principal place of business located at 2260 East Imperial Highway, El Segundo,
CA, U.S.A., ("Contractor"), and New Skies Satellites N.V., a Dutch corporation,
with its principal place of business located at Rooseveltplantsoen # 4, 2517KR
The Hague, The Netherlands ("NSS").
W I T N E S S E T H T H A T:
The Parties hereto mutually agree as follows:
ARTICLE 1. DEFINITIONS
As used in this Contract:
A. "Acceptance" with respect to any Item other than the Spacecraft
shall be as defined in Paragraph 7.E. "Acceptance" with respect to the
Spacecraft shall be as defined in Paragraph 7.D.
B. "Alternative Launch Services Provider" means either Arianespace,
Boeing Delta Launch Services or International Launch Services, which may be
selected by NSS pursuant to Paragraphs 8.B. and 8.D. to Launch the Spacecraft.
C. "Alternative Launch Vehicle" means either the Ariane 5, the Atlas V,
the Delta IV or the Proton/Breeze M launch vehicle, which may be procured and
provided by NSS pursuant to Paragraphs 8.B. and 8.D.
D. "Authorized Representative" shall have the meaning set forth in
Article 29.
E. "Company Restricted Information" shall have the meaning set forth in
Paragraph 27.A.
F. "Conditional Acceptance" means that the Spacecraft does not meet the
criteria for Unconditional Acceptance, but the Spacecraft does meet the criteria
for conditional acceptance specified in Exhibit F, and that NSS has accepted the
Spacecraft in accordance with Paragraph 7.D.2.
G. "Contract" shall have the meaning set forth in the preamble.
H. "Contract Change Notice" means a notice proposing a change in any
requirement of this Contract as described in the Statement of Work and in
accordance with Article 12.
I. "Contract Data" means all Information, including Deliverable Data,
generated, developed, utilized, referenced, and/or referred to in the
performance of Work and/or relating to any Items.
J. "Contract Intellectual Property" means all Patents, U.S. and foreign
patent applications and patent disclosures; all patentable or unpatentable
inventions, discoveries, improvements, and innovations; all U.S. and foreign
trademarks, trademark applications, and all registrations and recordings
thereof; all U.S. and foreign service marks, service mark applications, and all
registrations and recordings thereof; trade names; all U.S. and foreign
copyrights, copyright registrations, and applications to register copyrights;
confidential or proprietary technical and business information and trade
secrets; know-how; show-how; licenses (including in the form of an immunity from
suit) to use the intellectual property of third parties (to the extent that the
licensee can sublicense); software; technical manuals and documentation used in
connection with the foregoing; and other intellectual property and proprietary
information generated, developed, utilized, referenced, and/or referred to in
the performance of Work and/or relating to any Items.
K. "Contract Technology" means any and all Contract Data and Contract
Intellectual Property.
L. "Contracted Orbital Maneuver Life" means an Orbital Maneuver Life as
set forth in Section 1.1.5 of the Spacecraft Performance Specifications.
M. "Contractor" shall have the meaning set forth in the preamble.
N. "Deliverable Data" means all Information required to be delivered to
NSS under this Contract, including data and information contained in reports,
documents, computer programs, drawings and graphs.
O. "Deliverable Hardware" means all property other than Deliverable
Data required to be delivered to NSS under this Contract, including Spacecraft,
equipment, models, devices and the tangible media on which Deliverable Data is
delivered.
P. "Delivery" for Items other than the Spacecraft shall occur upon
Acceptance as confirmed in writing by NSS as described in Paragraph 6.B.
"Delivery" for the Spacecraft shall be as described in Paragraph 6.A.
Q. "Effective Date of Contract" or "EDC" shall have the meaning set
forth in the preamble.
R. "Export Laws" shall have the meaning set forth in Paragraph 3.C.
S. "Export Laws Compliance Program" means the program described in
Exhibit G that Contractor will implement to ensure that Contractor obtains all
governmental authorizations and approvals necessary to permit NSS to have access
to all Work, facilities, data, information, documentation, books, records,
testing and test results, and to take Delivery of all Items, as required by this
Contract.
T. "Information" means all data and information, including data and
information of a technical, business or financial nature which has been
documented on any tangible media, including writings, drawings, sound
recordings, computer programs, pictorial representations and graphs.
U. "In Service Date" means the date of Acceptance of the Spacecraft.
V. "Insurance Agreement" means one (1) or more agreements providing for
insurance of the Spacecraft between either Contractor or NSS and insurance
underwriters as described in Paragraph 9.A,
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
W. "Intentional Ignition" means the intentional ignition of the Launch
Vehicle by the Launch Services Provider as defined in the Launch Services
Agreement.
X. "IOT" means in-orbit tests as specified in the Test Plan.
Y. "Items" means any and all Deliverable Hardware and Deliverable Data.
Z. "Key Subcontract" shall have the meaning set forth in Paragraph
10.B.
AA. "Key Subcontractor(s)" shall have the meaning set forth in
Paragraph 10.B.
BB. "Launch" means the launch of the Spacecraft as defined in the
Launch Services Agreement.
CC. "Launch Services Provider" means Sea Launch, or an Alternative
Launch Services Provider selected by NSS in accordance with Paragraphs 8.B. and
8.D., which will Launch the Spacecraft.
DD. "Launch Services" means those services to be provided by the Launch
Services Provider pursuant to the Launch Services Agreement.
EE. "Launch Services Agreement" means the agreement between Contractor
and Sea Launch providing for the Launch of the Spacecraft and containing the * ,
or a launch services agreement between NSS and an Alternative Launch Services
Provider as described in Paragraphs 8.B. and 8.D.
FF. "Launch Site" means the location from which the Launch of the
Spacecraft will occur, as specified in the Launch Services Agreement.
GG.
*
HH. "Launch Vehicle" means the Sea Launch vehicle procured and provided
by Contractor, or an Alternative Launch Vehicle procured and provided by NSS
pursuant to Paragraphs 8.B. and 8.D.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
II. "License to Practice" means a right to disclose, make, use, lease,
offer for sale, market, advertise, promote, sell, dispose of and otherwise
practice.
JJ. "Milestone Payment Plan" means the milestone payment plan attached
hereto as Exhibit E.
KK. "NPV Discount Rate" means such rate specified in Paragraph 4.A.
LL. "NSP" means Items that are not separately priced hereunder.
MM. "NSS" shall have the meaning set forth in the preamble.
NN. "Operational In Orbit Incentives" means the monies that may be
earned by Contractor, as specified in Paragraph 4.A., based on the performance
of the Spacecraft, which monies shall be payable to Contractor under the
conditions set forth in Paragraphs 5.D. through 5.F.
OO. "Optional Spacecraft" means the spacecraft that Contractor is
obligated to deliver to NSS, if NSS elects its option(s) for such Delivery, as
described in Paragraph 30.A.
PP. "Orbital Design Life" means the orbital design life of the
Spacecraft as specified in Section 1.1.4. of the Spacecraft Performance
Specifications.
QQ. "Orbital Maneuver Life" means the period of time following the In
Service Date for which the Spacecraft has sufficient fuel to be operated at the
Orbital Station, in accordance with stationkeeping requirements set forth in the
Spacecraft Performance Specifications, and allowing sufficient fuel to deorbit
the Spacecraft at the end of its life, also in accordance with the standards set
forth in the Spacecraft Performance Specifications.
RR. "Orbital Station" means the orbital location at which the
Spacecraft is to be placed in geosynchronous orbit for Delivery to be specified
by NSS pursuant to the Statement of Work.
SS. "Patent" means a U.S. or foreign patent for an invention or a
similar form of statutory protection such as a utility model or registered
design.
TT. "Party" or "Parties" means NSS and/or Contractor, who are the
principals to this Contract.
UU. "Prepaid Operational In Orbit Incentives" shall have the meaning
set forth in Paragraph 5.E.
VV. "Product Assurance Plan" means the product assurance plan attached
hereto as Exhibit C.
WW. "Promised Delivery Date" means the date promised for Delivery of an
applicable Item pursuant to Article 3.
XX. "Proprietary Information" shall have the meaning set forth in
Paragraph 27.A.
YY. "Replacement Spacecraft" means the replacement spacecraft that
Contractor is obligated to deliver to NSS, if the Spacecraft fails after
Intentional Ignition and before Delivery and if NSS exercises its option for
such replacement spacecraft pursuant to Paragraph 30.B.
ZZ. "Right to Publish" means a right to make public through any means
and media whatsoever.
AAA. "Right to Use" means a right to disclose, copy, duplicate,
reproduce, modify and otherwise use.
BBB. "Schedule Margin" means the time period between Contractor's
planned Delivery of the Spacecraft and the Promised Delivery Date of the
Spacecraft, expressed in calendar days.
CCC. "Services" means all services and labor required to be provided or
arranged for under this Contract by Contractor, including studies, development,
research, design, analysis, manufacture, product assurance, product integration,
transportation, launch, insurance and testing.
DDD. "Spacecraft" means the satellite to be constructed by Contractor
and launched and delivered to NSS.
EEE. "Spacecraft Performance Specifications" means the performance
specifications attached hereto as Exhibit A.
FFF. "Statement of Work" means the statement of work attached hereto as
Exhibit B.
GGG. "Subcontract" means a subcontract including purchase orders,
memoranda of understanding and all similar forms of agreement at any tier under
this Contract.
HHH. "Subcontractor" means a contractor under any Subcontract.
III. "Test Plan" means the on-ground and in-orbit test plan attached
hereto as Exhibit D.
JJJ. "Total Firm Fixed Price" shall have the meaning set forth in
Paragraph 4.A.
KKK. "Total Verified Termination Expense" shall have the meaning set
forth in Paragraph 17.B.
LLL. "Unconditional Acceptance" means that the Spacecraft meets the
criteria for unconditional acceptance specified in Paragraph 7.D.1., and that
NSS has accepted the Spacecraft in accordance with Paragraph 7.D.
MMM. "Work" means the production and Delivery of all Items and the
provision of all Services under this Contract by Contractor.
ARTICLE 2. SCOPE OF WORK/ORDER OF PRECEDENCE
A. Scope of Work
Contractor (i) shall provide the necessary personnel, material,
equipment, services and facilities to perform the Work specified under the
provisions of this Contract, including the Exhibits listed below, (ii) shall
perform such work and (iii) shall deliver to NSS those Items listed under
Article 3, in accordance with the Promised Delivery Dates specified therein. The
Exhibits to this Contract, which are attached hereto and hereby made a part of
this Contract, are as follows:
Exhibit A - Spacecraft Performance Specifications
Exhibit B - Statement of Work
Exhibit C - Product Assurance Plan
Exhibit D - Test Plan
Exhibit E - Milestone Payment Plan
Exhibit F - Criteria for Conditional Acceptance
Exhibit G - Export Laws Compliance Program
Exhibit H - Maximum Termination Liability
Exhibit I - Reserved
Exhibit J - Bill of Sale
Exhibit K - Certificate of Performance
Exhibit L - Launch Services *
Exhibit M - * Spacecraft Baseline Specifications
B. Order of Precedence
In the event of conflict among the terms of this Contract (other than
the Exhibits) and the Exhibits, the following order of decreasing precedence
shall apply:
- This Contract (Preamble and Articles 1 through 35)
- Exhibit E Milestone Payment Plan
- Exhibit B Statement of Work
- Exhibit A Spacecraft Performance Specifications
- Exhibit F Criteria for Conditional Acceptance
- Exhibit C Product Assurance Plan
- Exhibit D Test Plan
- Exhibit L Launch Services *
- Exhibit G Export Laws Compliance Program
- Exhibit H Maximum Termination Liability
- Exhibit J Bill of Sale
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
- Exhibit M * Spacecraft Baseline Specifications
- Exhibit K Certificate of Performance
ARTICLE 3. ITEMS TO BE DELIVERED AND DELIVERY SCHEDULE
A. Items/Promised Delivery Dates
All Items and Services to be delivered and the corresponding Promised
Delivery Dates and points of Delivery are set forth below:
- ------------------------------------------------------------------------------------------------------------------
Promised Delivery Point of Delivery
Item No. Quantity Description Date
- ------------------------------------------------------------------------------------------------------------------
1. 1 Spacecraft as specified in Exhibit A and (1) * Orbital Station
Exhibit B
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2. 1 lot All Software Models, Databases, Analysis Per Exhibit B NSS Headquarters
Tools or any other Data required to
operate the Spacecraft
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3. 1 lot All other documentation, Software and Data Per Exhibit B Per Exhibit B
as specified in Exhibit B
- ------------------------------------------------------------------------------------------------------------------
4. 1 lot Launch Operations Support, Launch Services Per Exhibit B Per Exhibit B
(subject to Paragraph 8.B.), Insurance
(subject to Paragraph 9.A.2.), IOT, Mission
Operations Support, Anomaly Investigation
Support, and Visibility Services as
specified in Exhibit B (no Deliverable
Hardware will be delivered under this
category (Paragraph 3.A, Item 4))
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5. 1 Spacecraft Simulator as specified in Per Exhibit B NSS Headquarters
Exhibit B
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- ----------------
(1) If IOT is conducted at an orbital location other than the Orbital
Station, the Promised Delivery Date shall be extended on a day-for-day
basis for the number of days required to accomplish the relocation of the
Spacecraft from the IOT location to the Orbital Station plus two (2)
additional days for final check-out at the Orbital Station. The rate of
relocation from the IOT location to the Orbital Station shall be specified
by Customer provided that, if Customer requires the relocation at a rate in
excess of one degree (1(degree)) per day, any additional station keeping
fuel required to accomplish the relocation at a rate greater than one
degree (1(degree)) per day shall be restored for purposes of calculating
the Orbital Maneuver Life of the Spacecraft on the In Service Date.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
Any optional Items ordered by NSS hereunder are specified in Article 30 and
would be delivered, if ordered, pursuant to the terms of Article 30.
B. Time of Essence
Contractor understands and agrees that the times for the Promised
Delivery Dates set forth above are of the essence to this Contract. At EDC,
Contractor represents and warrants to NSS that it has built in to its internal
schedule for the Spacecraft program at least * (*) days of Schedule Margin.
C. Contractor Responsibility
Delivery of all Items under this Contract shall be at Contractor's
expense. As provided in Paragraph 14.E., Contractor shall be responsible for
securing all necessary export and import authorizations in a timely manner,
including, as necessary to deliver to NSS and its representatives and
contractors, technical data under all applicable laws, rules, and regulations,
including the U.S. International Traffic in Arms Regulations, as the same may be
amended (collectively, "Export Laws"). Notwithstanding the foregoing, Contractor
shall not be responsible for the payment of any import duties related to Items
delivered to NSS, or Services performed for NSS, in The Netherlands.
ARTICLE 4. PRICES
A. Total Firm Fixed Price
The Total Firm Fixed Price for the Spacecraft and all other Items,
including all software, documentation, and Services described in items numbered
1 through 5 in Paragraph 3.A., for the scope of the Work detailed in the
Statement of Work, is
* ($ * ) plus insurance
premiums paid (the "Total Firm Fixed Price"). The itemization of the Total Firm
Fixed Price of the Spacecraft and the other Items is as follows:
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
- ----------------------------------------------------------------------------------------------------------
Item No. Description Amount
- ----------------------------------------------------------------------------------------------------------
1. Spacecraft less incentives $ *
- ----------------------------------------------------------------------------------------------------------
2. Operational In Orbit Incentives $ * (1)
- ----------------------------------------------------------------------------------------------------------
3. Launch on Sea Launch Launch Vehicle $ *
- ----------------------------------------------------------------------------------------------------------
4. Insurance * %(2)
- ----------------------------------------------------------------------------------------------------------
5. Operations software and all other documentation, software
and data as set forth in Exhibit B *
- ----------------------------------------------------------------------------------------------------------
6. Launch operations support/mission operations support $ *
- ----------------------------------------------------------------------------------------------------------
7. All other Services as set forth in Exhibit B except *
Launch Services, insurance, Launch operations support
and mission * operations support
- ----------------------------------------------------------------------------------------------------------
8. Spacecraft Simulator $ *
- ----------------------------------------------------------------------------------------------------------
Total Firm Fixed Price $ * (3)
plus insurance premium
- ----------------------------------------------------------------------------------------------------------
(1) If paid over time, plus interest, at the London Interbank Offered Rate
(London Quote) for three (3) months plus * percent (* %) per annum net
present value interest factor (the "NPV Discount Rate").
(2) Indicative premium of insured value for Total Firm Fixed Price, including
the amount of the insurance premium plus all accrued interest at the NPV
Discount Rate on all money paid by NSS to Contractor (or directly to the
Alternative Launch Services Provider and/or to insurance underwriters if
NSS elects its option to procure Launch Services from an Alternative
Launch Services Provider pursuant to Paragraphs 8.B. and 8.D. and
insurance pursuant to Paragraph 9.A.2.), from Intentional Ignition through
one (1) year thereafter, subject to adjustment based on market conditions
and final scope.
*
(3) Subject to the exercise by NSS of the options to procure Launch Services
and insurance directly pursuant to Paragraphs 8.B. and 8.D. and 9.A.2.,
respectively.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
The prices for any Items that are subject to options under this
Contract are described in the
particular Articles which set forth those options.
B. Taxes
The Total Firm Fixed Price and the prices for all other deliverables
(including optional deliverables) under this Contract include all taxes, duties
(except for import duties related to Items delivered to NSS, or Services
performed for NSS, in The Netherlands), transportation, insurance and all other
costs and charges associated with the performance of all Work. Contractor shall
be responsible for payment of all taxes and duties (except for import duties
related to Items delivered to NSS or Services performed for NSS in The
Netherlands) which may be required under any present or future laws and which
become due by reason of performance of the Work, and shall comply with all
requirements of said laws, including payment of any interest or penalties
related to or arising from such taxes and duties. For the purposes of this
Contract, the price of the Spacecraft authorized by NSS to be delivered shall be
FOB on station at the Orbital Station and the prices of all other Items
authorized by NSS to be shipped shall be FOB NSS headquarters in The
Netherlands, unless otherwise specified in writing by NSS.
C. Adjustments
1. Conditional Acceptance. If, on the In Service Date, the Spacecraft
does not meet the criteria for Unconditional Acceptance, but does meet the
criteria for Conditional Acceptance, the * shall be adjusted in the manner
described in Exhibit F, and NSS shall be entitled to refunds of amounts paid to
Contractor prior to the In Service Date and adjustments in the payments due to
Contractor on or after the In Service Date in an amount equal to the amount of
the adjustment to the
* calculated pursuant to Exhibit F.
2. Delayed Delivery. Contractor and NSS agree that TIME IS OF THE
ESSENCE IN THIS CONTRACT, and that delayed Delivery of the Items required by
this Contract past the Promised Delivery Dates may cause NSS to incur additional
costs including loss of anticipated revenue, and other damages difficult or
impossible to measure. Accordingly, Contractor and NSS agree to liquidated
damages for late Delivery (up to the maximum number of days for which price
reductions are applied) as provided below, which damages are intended to be
compensatory and do not constitute a penalty.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
a. Amount of Adjustment. In the event any Spacecraft,
*
, to be delivered hereunder are not delivered on or before the Promised
Delivery Date (excluding the number of days of excusable delay, if any, within
the meaning of Article 19), then until such Spacecraft
* are delivered, commencing on the
first day following the Promised Delivery Date, the Total Firm Fixed Price of
such Spacecraft * shall be
reduced for each day of late Delivery as follows:
--------------------------------------------------------------------------
Number of Days Price Adjustment
of Late Delivery Per Day Maximum
--------------------------------------------------------------------------
1st - 30th day $ * $ *
--------------------------------------------------------------------------
31st day $ * $ *
--------------------------------------------------------------------------
32nd - 150th day $ * $ *
--------------------------------------------------------------------------
(total) $ *
--------------------------------------------------------------------------
b. Application of Adjustment. If the Spacecraft
* is
delivered late, NSS shall determine against which payments due Contractor,
pursuant to the terms of this Contract, the adjustments specified above for late
Delivery of such Spacecraft .
If no payments are owed to Contractor, then NSS may obtain an immediate refund
from Contractor for the amount of the price adjustment.
*
c. Sole Compensation. If Contractor does not meet the
Promised Delivery Dates specified in the Contract, the price adjustments
corresponding to the number of days of late Delivery specified in Paragraph
4.C.2.a. hereof shall be the sole compensation to which NSS shall be entitled
for delays in Deliveries of the Spacecraft * for
such period of time; provided however, that NSS may also exercise its right to
terminate this Contract for cause or excusable delay, pursuant to Article 18.
NSS' right or election to accept adjustments for late Delivery shall not be in
lieu of its right to terminate for late Delivery pursuant to Article 18.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
d. Other Remedies. Nothing contained in this Paragraph
4.C.2. shall affect any right or remedy available to NSS, under this Contract
* , for delay exceeding the number of days stated in Paragraph 4.C.2.a.
e. Contractor Notice. Contractor shall immediately notify NSS
of any circumstance that will cause or threaten to cause a delay in Delivery,
including any reduction in available Schedule Margin. Contractor shall provide
NSS, no less frequently than quarterly, with Contractor's best estimate of when
Delivery will occur, which estimate NSS may then use for purposes of this
Paragraph 4.C.2. and Paragraphs 18.A. and 18.D.
*
3. NSS Provision of Launch Services. In the event NSS exercises its
option to procure directly the Launch Services from an Alternative Launch
Services Provider pursuant to Paragraphs 8.B. and 8.D., the Total Firm Fixed
Price specified in Paragraph 4.A. shall be adjusted by the difference between
* Dollars ($ * ) and the cost of the Launch Services procured by NSS
from the Alternative Launch Services Provider and increased by the amount
specified in Paragraphs 8.D.6. and 8.D.7., corresponding with the Alternative
Launch Vehicle selected by NSS pursuant to Paragraphs 8.B. and 8.D.
4. NSS Provision of Insurance. In the event NSS exercises its option to
procure directly the insurance pursuant to Paragraph 9.A.2., the Total Firm
Fixed Price for the Spacecraft specified in Paragraph 4.A. shall be adjusted by
the difference in the insurance cost specified in item 4 under Paragraph 4.A.
and the cost of the insurance procured directly by NSS.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 5. METHOD OF PAYMENT
A. Spacecraft Less Incentives
Payment by NSS to Contractor of the amount due for the Spacecraft (less
incentives) specified in item 1 in Paragraph 4.A. of this Contract (and of the
amounts due for Launch operations support/mission operations support and
Spacecraft simulator specified in items 6 and 8 in Paragraph 4.A. of this
Contract) shall be made in accordance with the Milestone Payment Plan and the
conditions specified therein. The amounts specified in the Milestone Payment
Plan shall in each case be paid by NSS to Contractor within thirty (30) days
after receipt by NSS of an invoice from Contractor, accompanied by a
certification from an officer of Contractor, that the particular milestone
events for which payment is being claimed in each case have been completed and
enclosing any other documentation necessary to demonstrate the completion of
such milestones. Contractor shall submit no more than one (1) invoice per
calendar month which shall list all completed milestones for that month.
B. Launch Services
1. Launch Services Procurement by Contractor. Subject to Paragraph
5.B.2., payment by NSS to Contractor of the amount due for Launch Services
specified in item 3 in Paragraph 4.A. of this Contract shall be in the form of
reimbursements of payments that Contractor makes under the Launch Services
Agreement with respect to the Launch of the Spacecraft, which reimbursement
schedule is set forth separately in Exhibit E. Contractor shall submit invoices
to NSS for reimbursement of payments that Contractor is to make to the Launch
Services Provider at least thirty (30) days prior to the date such payments to
the Launch Services Provider are due as specified in Exhibit E. NSS shall remit
such amounts to Contractor on or before the date that Contractor's payments to
the Launch Services Provider are due. Contractor shall promptly advise NSS of
any changes in the due dates for payments due to the Launch Services Provider
and shall adjust the schedule in Exhibit E for the corresponding payments by NSS
accordingly.
*
2. Launch Services Procurement by NSS
a. NSS procurement. If NSS exercises its option to procure the
Launch Services from an Alternative Launch Services Provider pursuant to
Paragraphs 8.B. and 8.D. of this Contract, NSS shall pay amounts due for the
Launch Services directly to the Launch Services Provider. Under these
circumstances, in the event that the Spacecraft delivered for Launch is not able
to meet the Contracted Orbital Maneuver Life and all other requirements of the
Spacecraft Performance Specifications,
* .
NSS shall submit invoices to Contractor for any amounts due to NSS under this
Paragraph 5.B.2.a. at least thirty (30) days prior to the date NSS' payments to
the Alternative Launch Services Provider are due. Contractor shall remit such
amounts to NSS on or before the date that NSS' payments to the Alternative
Launch Services Provider are due.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
b. Associated Services. In the event Contractor wishes to
acquire any associated services under the Launch Services Agreement with an
Alternative Launch Services Provider other than those considered normal and
customary, Contractor shall notify NSS, in writing. Upon receipt of such notice,
NSS shall procure the specified associated services on Contractor's behalf and
invoice Contractor for same,
*
C. Insurance
1. Procurement of Insurance by Contractor. Subject to Paragraph 5.C.2.,
payment by NSS to Contractor of the amount due for insurance specified in item 4
in Paragraph 4.A. of this Contract shall be in the form of reimbursements of
payments that Contractor makes under the Insurance Agreement with respect to the
insurance of the Spacecraft. The Insurance Agreement shall contain a payment
schedule that is comparable to payment schedules set forth in similar agreements
made by the selected insurance underwriters, and in any event, such payment
schedule shall be no less favorable to Contractor than any other insurance
agreements that Contractor may have with the selected insurance underwriters as
of EDC. Contractor shall submit invoices to NSS for reimbursement of payments
that Contractor is to make to the insurance underwriters at least thirty (30)
days prior to the date such payments to the insurance underwriters are due. NSS
shall remit such amounts to Contractor on or before the date that Contractor's
payments to the insurance underwriters are due.
Contractor shall promptly advise NSS of any changes in the due dates for
payments due to the insurance underwriters that previously have been invoiced to
NSS and shall adjust the schedule of the corresponding payments by NSS
accordingly.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
*
2. Option for Procurement of Insurance by NSS. If NSS exercises its
option to procure directly the insurance pursuant to Paragraph 9.A.2. of this
Contract, NSS shall pay amounts due for the insurance directly to the insurance
underwriters.
D. Operational In Orbit Incentives
Payment by NSS to Contractor of the amount due for the Operational In
Orbit Incentives specified in item 2 in Paragraph 4.A. of this Contract (as may
be adjusted pursuant to Exhibit F to reflect the performance of the Spacecraft
on the payment due date) shall be made in forty-eight (48) equal quarterly
payments. Each quarterly payment shall include interest on the amount of the
remaining unpaid Operational In Orbit Incentives calculated at the NPV Discount
Rate on the date of invoice. The quarterly payments of the Operational In Orbit
Incentives (as may be adjusted pursuant to Exhibit F) shall be made within
thirty (30) days after receipt by NSS of Contractor's invoices therefor, the
first of which may be issued by Contractor no earlier than the sixtieth (60th)
day after the In Service Date, and payment shall be due only if (i) Acceptance
of the Spacecraft has occurred and (ii) from the In Service Date and for sixty
(60) days thereafter, the Spacecraft has continued to meet or exceed the
criteria for Conditional Acceptance as specified in Exhibit F. Forty-seven (47)
subsequent quarterly payments of Operational In Orbit Incentives (as may be
adjusted pursuant to Exhibit F) shall be invoiced by Contractor on ninety (90)
day intervals after the first such invoice but only if, throughout each ninety
(90) day period preceding an invoice date, the Spacecraft has continued to meet
or exceed the criteria for Conditional Acceptance as specified in Exhibit F.
Notwithstanding the foregoing, any quarterly Operational In Orbit Incentives
payments made by NSS
*
shall be promptly refunded by Contractor to NSS (1) in full, if the Spacecraft
does not continue to meet or exceed the criteria for Conditional Acceptance
*
, or (2) in part, if the performance of the Spacecraft
*
has degraded such that adjustments in the Operational In Orbit Incentives are
appropriate pursuant to Exhibit F. Any degradations in the performance of the
Spacecraft which are solely and directly attributable to the negligence or
willful misconduct of NSS in connection with the operation of the Spacecraft
after Delivery shall not give rise to any adjustments in the Operational In
Orbit Incentives due to Contractor.
E. Prepayment of Operational In Orbit Incentives
NSS may prepay the Operational In Orbit Incentives at any time in an
amount equal to the total outstanding amount of the unpaid balance of the
Operational In Orbit Incentives plus interest on such outstanding amount
calculated at the NPV
Discount Rate from the date of the previous payment until the time of the final
prepayment ("Prepaid Operational In Orbit Incentives"). The prepaid Operational
In Orbit Incentives shall be refundable by Contractor to NSS (in the amount
specified below) if, after such prepayment is made and prior to the end of the
Orbital Design Life, the performance of the Spacecraft has degraded such that
adjustments in the Operational In Orbit Incentives are appropriate pursuant to
Exhibit F. Any such refund shall be due within thirty (30) days after
Contractor's receipt of an invoice from NSS in an amount equal to the sum of (x)
the amount of any Prepaid Operational In Orbit Incentives that, if not prepaid,
would have become due after the date on which the Spacecraft's performance has
degraded such that adjustments in the Operational In Orbit Incentives are
appropriate pursuant to Exhibit F, plus (y) interest on each such amount at the
NPV Discount Rate from the date prepaid to the date of such invoice.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
F. Adjustment of Payments
Payments due to Contractor from NSS under this Article 5. may be
adjusted by NSS to the extent * of the Spacecraft is
adjusted pursuant to Paragraph 4.C. and Exhibit F of this Contract, and such
adjustments in the payments shall be made by NSS in the manner specified
therein. If * is adjusted because there has been Conditional Acceptance of the
Spacecraft, then the amount of the adjusted Operational In Orbit Incentives
shall be paid pursuant to Paragraphs 5.D. and/or E. above, as applicable. In
addition, the actual performance parameters of the Spacecraft on the date of
Conditional Acceptance shall be the baseline criteria for determining whether
Contractor is entitled to
*
to be made by NSS after the In Service Date pursuant to Paragraphs 5.D. and/or
E.
*
G. Disputed Payments
If * an item for which an invoice has been submitted is not
payable in accordance with the terms of this Contract, or that any milestone or
condition established by this Contract as a prerequisite to payment has not been
fulfilled, the applicable payment shall not be made until such time as NSS
determines that such milestone or condition has been fulfilled.
H. Currency/Place of Payment
All payments and/or refunds due from either Party to the other shall be
made in United States Dollars. Payments and/or refunds to a Party shall be made
by wire transfer of funds to such place for payments and/or refunds as the
receiving Party's Authorized Representative may designate from time to time in
writing. Unless NSS otherwise notifies Contractor, all invoices for payments to
be made by NSS shall be addressed as follows:
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
New Skies Satellites N.V.
Rooseveltplantsoen # 4
2517KR The Hague
The Netherlands
Attn: Accounts Payable / Mr. Adrien Bull
with a separate New Skies Satellites N.V.
copy to: Rooseveltplantsoen # 4
2517KR The Hague
The Netherlands
Attention: Vice President, Space Segment Technology
Facsimile No.: +31 70 306 4285
NSS-8 Program Office
Building S12, M/S W341
c/o Boeing Satellite Systems, Inc.
P.O. Box 92919
Los Angeles, CA 90009-2919
Attention: NSS-8 Program Manager
Facsimile No.: 1-310-426-1443
Unless Contractor otherwise notifies NSS, all payments to be made by NSS to
Contractor shall be made by wire transfer to the following account:
Bank of America
Los Angeles Main Office
Los Angeles, CA. USA
For deposit to the account of Boeing Satellite Systems International, Inc.
Account No. *
ARTICLE 6. DELIVERY, TITLE AND RISK OF LOSS OR DAMAGE
A. Spacecraft Delivery
Risk of loss or damage, and title, to the Spacecraft shall transfer
from Contractor to NSS upon Delivery. Delivery of the Spacecraft shall occur
upon Acceptance in writing by NSS pursuant to Paragraph 7.D., and delivery of a
bill of sale for the Spacecraft in the form of Exhibit J.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
B. Delivery of Other Items
Risk of loss or damage and title to all Items other than the Spacecraft
shall transfer from Contractor to NSS upon Delivery. Delivery of such Items
shall occur upon Acceptance in writing by NSS pursuant to Paragraph 7.E., and
delivery of a bill of sale in the form of Exhibit J, except as otherwise
provided in the Statement of Work.
C. Title
Contractor warrants that title to all Items delivered hereunder shall
be good, marketable and rightfully conveyed, and shall be delivered free and
clear of all liens, encumbrances, pledges and other interests whatsoever.
Furthermore, Contractor agrees to execute and deliver all instruments reasonably
required to perfect or evidence such title in NSS.
ARTICLE 7. CERTIFICATION, INSPECTION, ACCEPTANCE, WAIVERS
A. General Requirements
Contractor is responsible for testing, demonstrating, delivering,
* * the Spacecraft and all other Deliverable
Hardware and Deliverable Data meet all of the requirements of this Contract,
including the Spacecraft Performance Specifications. NSS' right of inspection or
acceptance shall not be deemed a waiver of any defect, except as may be
expressly agreed in writing by NSS in accordance with Paragraph 7.B. below.
Prior to asking NSS to accept any Items and prior to Delivery,
*
B. Waivers
Contractor shall immediately notify NSS at such time that Contractor
determines that it will not be able to meet a particular Contract requirement or
specification and seek a waiver from NSS. Nothing herein shall be deemed to
require NSS to grant a waiver, but, if it is willing to consider doing so, and
except for adjustments which are addressed in other Articles of this Contract,
NSS and Contractor shall negotiate in good faith reasonable consideration (in
the form of a reduction in the Total Firm Fixed Price of the Spacecraft or the
price of the other Items to be delivered hereby, or a refund) for any requested
waiver that represents a material deviation from Contract requirements or
specifications. If the Parties cannot agree on an appropriate amount,
* , subject to a determination by binding
arbitration under Article 21 of an appropriate price adjustment.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
C. Inspections
Preliminary inspections of Items may be made by NSS or its designated
representatives at either Contractor's or, subject to any Subcontractor's
consent, a Subcontractor's plant, as the case may be. Contractor shall use
reasonable efforts to accommodate NSS' inspection requests and to further
request such inspections at a Subcontractor's plant when reasonable and
appropriate. All such inspections shall be in the company of a Contractor's
representative; provided that, if after reasonable notice (orally or in writing)
of NSS' inspection plans at a Subcontractor's facility, Contractor shall have
failed to furnish such a representative, NSS may conduct an unaccompanied
inspection, subject to Subcontractor's consent. Without limiting Contractor's
own responsibilities in this respect, Contractor shall also remedy any and all
defects identified by NSS in the course of such inspections.
D. Spacecraft Acceptance Procedure
Following a successful completion of the pre-shipment inspection of the
Spacecraft, Contractor shall ship the Spacecraft to the Launch Site and proceed
with the further testing and Launch of the Spacecraft in accordance with the
Statement of Work and the Test Plan. Contractor shall notify NSS of the IOT
schedule at least thirty (30) days prior to the Launch of the Spacecraft. The
IOT shall be conducted in accordance with the Statement of Work and the Test
Plan, and NSS' representatives shall be permitted to observe all phases of the
IOT. When the IOT is completed, Contractor shall submit to NSS the test results
and shall hold an acceptance review with NSS in accordance with the requirements
of the Statement of Work and the Test Plan. At the conclusion of the acceptance
review and upon arrival of the Spacecraft at the Orbital Station,
*
NSS shall either accept the Spacecraft in accordance with Paragraph 7.D.1. or
Paragraph 7.D.2. hereof if NSS is reasonably satisfied with the IOT results
* , or reject the Spacecraft.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
1. Unconditional Acceptance. NSS shall be obligated to accept, in
writing, without conditions, the Spacecraft only if (i) the Spacecraft has
successfully passed the Test Plan (as may be modified by any waivers previously
granted by NSS), (ii) it has been verified that the Spacecraft's Orbital
Maneuver Life will be at least for the period specified in Section 1.1.5. of the
Spacecraft Performance Specifications, (iii) the Spacecraft satisfies all the
requirements specified in the Spacecraft Performance Specifications (as may be
modified by any waivers previously granted by NSS), (iv) it has been verified
that the Spacecraft,
*
will meet all the requirements of the Spacecraft Performance Specifications
during the Orbital Design Life of the Spacecraft, and (v)
* .
2. Conditional Acceptance. NSS shall be obligated to accept, in
writing, the Spacecraft when it has been verified at the acceptance review that,
although it does not meet the criteria for Unconditional Acceptance, the
Spacecraft meets the criteria for Conditional Acceptance specified in Exhibit F.
E. Acceptance Procedures for Other Items
Except as specified in the Statement of Work, Acceptance of Items to be
Delivered under the Contract other than the Spacecraft shall occur in accordance
with the requirements of this Paragraph 7.E. Contractor shall certify to NSS the
results of its inspection and tests of all such Items in a form acceptable to
NSS. Based upon this certification, upon which NSS shall be entitled to rely,
and any inspection or testing that NSS may conduct, NSS shall either accept the
same in writing or notify Contractor in writing of those defects in which the
Items are unacceptable. Upon receipt of a notice that any Item is unacceptable
to NSS, Contractor shall remedy such Item. Upon remedy of such defects * , the
Item shall be accepted by NSS in writing.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
F. Remedy of Defects
Except as set forth in Paragraph 7.G. below with respect to a
Spacecraft after Delivery, remedy of any defects in an Item shall be
accomplished by Contractor at its expense, promptly upon receipt of notice
thereof. Any Items found to be non-conforming during or after testing required
under this Contract,
* , and without charge to NSS, shall be
promptly re-tested (together with any other potentially affected parts or
systems) by Contractor both at the unit level, and, if NSS requests in its sole
discretion exercised in good faith, at a system level or of the entire
Spacecraft ( * ) after Contractor has
remedied such non-conformance.
G. Post Acceptance Remedies
After Acceptance by NSS of the Spacecraft, Contractor shall fully
cooperate with NSS and Contractor, at NSS' request, shall investigate and assist
NSS in remedying, to the extent reasonably practicable, any defects that are
identified on the Spacecraft (including, without limitation, through changes in
operational procedures, software, or, where possible, Spacecraft configurations)
until the end of the Orbital Maneuver Life.
ARTICLE 8. LAUNCH SERVICES PROCUREMENT
A. Procurement of Launch Services by Contractor
Subject to NSS' right to select an Alternative Launch Services Provider
pursuant to Paragraphs 8.B. and 8.D., the Spacecraft shall be Launched by Sea
Launch on a Sea Launch Vehicle pursuant to the terms of the Launch Services
Agreement between Contractor and Sea Launch. With respect to such Launch
Services Agreement, Contractor represents, warrants and covenants to NSS as
follows:
1. Representations and Warranties of Contractor. Contractor represents
and warrants that the Launch Services Agreement between Contractor and Sea
Launch:
a. Validity. Is a legal, valid and binding obligation of
Contractor and Sea Launch enforceable in accordance with its
terms;
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
b. Consistency with Contract. Provides for the Launch of the
Spacecraft (i) on a Launch Vehicle with a minimum performance
capability of * kilograms (*kg)
Spacecraft separated mass to Sea Launch's standard referenced
geosynchronous transfer orbit pursuant to the Sea Launch
User's Guide Revision B dated October, 2000 (D688-10009-1);
(ii) in a manner that will enable Contractor to meet all of
the requirements of the Spacecraft Performance Specifications;
and (iii) within a time period that has been designated on a
manifest for the Launch of the Spacecraft, and pursuant to
other terms and conditions, that will enable Contractor to
deliver the Spacecraft by the Promised Delivery Date and in
accordance with all other terms and conditions of this
Contract; and
c. Other Terms and Conditions. Contains terms that are normal and
customary in Sea Launch services agreements,
* .
2. Covenants of Contractor. With respect to the Launch Services Agreement
between Contractor and Sea Launch, Contractor covenants that it will:
a. Performance. Perform its obligations and enforce its rights
under such Launch Services Agreement in general and
specifically with respect to the Launch of the Spacecraft
hereunder;
b. Amendment. Not amend, modify or waive any provisions of such
Launch Services Agreement that would affect the Launch
schedule of the Spacecraft or any other material term or
condition regarding the Launch of the Spacecraft, without NSS'
prior written consent;
c. Contractor Postponements. Not request any postponement in the
Launch of the Spacecraft unless such postponement is directed
or consented to by NSS in writing;
d. Sea Launch Postponements. Consult with NSS regarding any
postponements in the Launch requested by Sea Launch and
respond to such requested postponements as NSS may
communicate;
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
e. NSS Participation. Provide NSS with all reports, data and
documentation generated by Contractor or provided to
Contractor by Sea Launch with respect to the Launch of the
Spacecraft and provide NSS complete access to all meetings,
reviews, Spacecraft/Launch Vehicle integration activities at
the
Spacecraft factory and at the Launch Site, and Launch Vehicle
anomaly or failure investigation activities related to the
Launch of the Spacecraft to the same extent as Contractor has
access thereto;
f. Amendments Requested by NSS. Use its best efforts to negotiate
any changes or amendments to the Launch Services Agreement
related to the Launch of the Spacecraft as may be requested by
NSS, with NSS being responsible for any costs and other
consequences (including changes in Launch dates) resulting
from the changes requested by NSS to the extent such costs and
consequences are imposed by Sea Launch in connection with the
change or amendment;
g. Termination. Either terminate the NSS Launch if NSS exercises
its option to change to an Alternative Launch Services
Provider pursuant to Paragraph 8.D. (with NSS being
responsible for termination charges, if any, related to such
termination) or, in lieu thereof, maintain the Launch Services
Agreement in full force and effect at Contractor's own
expense, for some other Contractor program.
B. Option for NSS To Procure Launch Services
Under the circumstances set forth in Paragraph 8.D., NSS may, up until
* (*) day prior to the shipment of the Spacecraft to the Sea Launch facility at
Long Beach, California, elect to procure Launch Services directly from any of
the Alternative Launch Services Providers, and may use any of the Alternative
Launch Vehicles, in lieu of using Sea Launch pursuant to Paragraph 8.A. NSS
shall notify Contractor accordingly, with such notification to include the
identification of NSS' selected Alternative Launch Vehicle and Alternative
Launch Services Provider. Upon such notification, and before entering into a
Launch Services Agreement, NSS shall solicit from Contractor any recommendations
for provisions or requirements to be included in the Launch Services Agreement.
Contractor shall respond to such solicitation within ten (10) days of receipt of
the request from NSS. NSS shall then promptly enter into a Launch Services
Agreement with the Alternative Launch Services Provider, giving due
consideration to such Contractor recommendations and incorporating Contractor
requirements where applicable.
C. Contractor Obligations
Contractor hereby agrees to perform all of the obligations pursuant to
the Launch Services Agreement with respect to the accomplishment of the Launch,
irrespective of whether the Launch Services have been procured pursuant to
Paragraph 8.A. or Paragraph 8.B. The Parties agree that in the event of any
ambiguity or inconsistency between any portion of this Contract and the Launch
Services Agreement, this Contract will take precedence. Except as provided in
Paragraphs 5.B.2.a. and b., the Parties acknowledge that the obligations of
Contractor under this Paragraph 8.C. shall not include NSS' payment obligations
to the Launch Services Provider if NSS procures the Launch Services pursuant to
Paragraph 8.B.
D. Option To Change Launch Services
If after the EDC, * Sea Launch will not be able to Launch the
Spacecraft in time to support the Promised Delivery Date of the Spacecraft plus
* (*) days, * or
if NSS wishes to have the
Launch Services Agreement terminated for one of the reasons for
termination * , NSS may elect to procure alternative Launch Services pursuant
to Paragraph 8.B. In this event:
1. NSS shall promptly notify Contractor of such election in
writing.
2. NSS shall procure a Launch on one of the Alternative Launch
Vehicles from one of the Alternative Launch Services
Providers.
3. Contractor shall refund to NSS all payments made by NSS to
Contractor pursuant to Paragraph 5.B.1 (less, if Contractor
in fact terminates the NSS Launch with Sea Launch, any
termination charges due to Sea Launch pursuant to the
* ) within * (*) days of receipt of NSS
notice.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
4. The Promised Delivery Date of the Spacecraft shall be
adjusted, without penalty, to a new date as required to
accomplish all work required to prepare to Launch the
Spacecraft on the Alternative Launch Vehicle. Contractor
agrees to support a Launch integration schedule that will
not exceed * (*) months or any Launch integration schedule
greater than * (*) months as required by the Alternative
Launch Services Provider. Contractor shall use reasonable
efforts to support a Launch integration schedule of less
than * (*) months if such schedule can be accommodated by
the Alternative Launch Services Provider.
5. *
If NSS elects to procure an Alternative Launch Vehicle from
a non-United States Alternative Launch Services Provider
other than * , Contractor shall not be responsible for
adjustments in the Promised Delivery Date pursuant to
Paragraph 8.D.4. that exceed * (*) months to the extent
such additional adjustments are required to comply with the
Export Laws with respect to such other non-United States
Alternative Launch Services Provider.
6. Contractor shall perform all obligations relative to the
new Launch Services Agreement according to Paragraph 8.C.
above. Contractor shall be entitled to payment for this
work according to the following schedule, provided,
however, that this payment shall be offset by work not
actually performed by Contractor pursuant to Contractor's
obligations relative to the original Launch Services
Agreement:
----------------------------------------------------------
Alternate Launch Vehicle Payment Amount (US$)
----------------------------------------------------------
Ariane 5 *
----------------------------------------------------------
Atlas V *
----------------------------------------------------------
Delta IV *
----------------------------------------------------------
Proton/Breeze M *
----------------------------------------------------------
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
7. In addition to the fixed payment indicated above,
Contractor will be entitled to a charge of *
Dollars ($ *) per month for each month that the Promised
Delivery Date is actually adjusted pursuant to Paragraph
8.D.4.
8. Payment of the fixed amount pursuant to Paragraph 8.D.6.
will be made in three (3) equal installments based on
Contractor reaching the following milestones: 1) Delivery
of Spacecraft into storage; 2) Completion of Spacecraft
FIST; and 3) Completion of IOT. The variable charge
specified in Paragraph 8.D.7. will be payable in *
installments beginning * (*) months after EDC, assuming
NSS has elected its option to change Launch Services
pursuant to this Paragraph 8.D.
9. If NSS terminates the Sea Launch for convenience * , the
following adjustments to other payment milestones terms
will be required. The milestone payment for completion of
IOT will become payable at * (*) months after EDC. The
payments of the Operational In Orbit Incentives will
continue to start after IOT, but incentive payments will
begin to accrue interest at the NPV Discount Rate
commencing at * (*) months after EDC.
10. If the Alternative Launch Services Provider elected by NSS
requires a three (3) axis vibration and acoustic test in
addition to those tests performed for the Sea Launch
Vehicle, then the Contract will be subject to an equitable
adjustment pursuant to Article 12.
ARTICLE 9. INSURANCE
A. Launch Insurance
1. Procurement of Insurance by Contractor. If NSS has not exercised its option
to procure insurance for Launch of the Spacecraft as contemplated by Paragraph
9.A.2., within nine (9) months prior to the Launch of the Spacecraft, Contractor
shall submit to NSS for NSS' approval, the proposed Insurance Agreement which
shall provide insurance for the Spacecraft from Intentional Ignition through one
(1) year after Intentional Ignition. The amount of the insurance shall be equal
to the Total Firm Fixed Price, including the amount of the insurance premium
plus all accrued interest at the NPV Discount Rate on all money paid by NSS to
Contractor (or directly to the Alternative Launch Services Provider and/or to
insurance underwriters if NSS elects its option to procure Launch Services from
an Alternative Launch Services Provider pursuant to Paragraphs 8.B. and 8.D. and
insurance pursuant to Paragraph 9.A.2.); provided that, in the event of a
successful Launch of the Spacecraft, at the time of successful separation of the
Spacecraft from the Launch Vehicle, the insurance on the amount of the
Operational In Orbit Incentives shall terminate.
*
The Insurance Agreement shall specify Contractor as the named insured until the
In Service Date. NSS shall be specified as the named insured from the In Service
Date to the conclusion of the term of the Insurance Agreement and as an
additional insured during all other periods of the term of the Insurance
Agreement. At NSS' request and expense, Contractor shall increase the amount of
the insurance and/or the term of the Insurance Agreement or substitute partially
therefor,
* . NSS
shall provide notice to Contractor of NSS' agreement or disagreement with the
Insurance Agreement at least eight (8) months prior to the Launch of the
Spacecraft. If there is a disagreement with the Insurance Agreement, the Parties
shall meet promptly and seek to resolve the dispute. Upon approval of the
Insurance Agreement by NSS, Contractor shall promptly enter into the Insurance
Agreement with the insurance underwriters and shall provide a copy of such
Insurance Agreement to NSS. NSS shall be permitted to participate in matters
related to the Insurance Agreement as specified in the Statement of Work. The
Insurance Agreement shall be assigned to NSS, at no cost to NSS, upon Acceptance
of the Spacecraft.
2. Option for NSS to Procure Insurance. On or before * (*) months prior
to the Launch of the Spacecraft, NSS may elect to procure directly the insurance
described above in Paragraph 9.A.1. (and/or if required to be procured through
Contractor,
* ). In the
event that NSS elects to procure such insurance, NSS shall notify Contractor of
such election, no less than nine (9) months prior to the Launch of the
Spacecraft. The Insurance Agreement shall specify Contractor as the named
insured until the In Service Date. NSS shall be specified as the named insured
from the In Service Date to the conclusion of the term of the Insurance
Agreement and as an additional insured during all other periods of the term of
the Insurance Agreement. Upon such notification, and before entering into an
Insurance Agreement with the insurance underwriters, NSS shall solicit from
Contractor any recommendations, for provisions to be included in the Agreement.
Contractor shall respond to such solicitation within ten (10) working days of
receipt of the request from NSS. NSS shall then promptly enter into the
Insurance Agreement with the insurance underwriters, giving due consideration to
such Contractor's recommendations.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
3. Contractor Obligations. Contractor hereby agrees to perform all of
the obligations of NSS pursuant to the Insurance Agreement with respect to the
insurance of the Spacecraft Launch, irrespective of whether the insurance has
been procured pursuant to Paragraphs 9.A.1. or 9.A.2. The Parties will meet to
mutually agree upon the roles and responsibilities of the Parties regarding
oversight and management of the Insurance Agreement, and document same. The
Parties agree that in the event of any ambiguity or inconsistency between any
portion of this Contract and the Insurance Agreement, this Contract will take
precedence. The Parties acknowledge that the obligations that Contractor is to
perform under this Paragraph 9.A.3. shall not include NSS' premium payment
obligations to the insurance underwriters if NSS procures the insurance pursuant
to Paragraph 9.A.2.
B. Life Insurance
Contractor shall use all reasonable efforts to cooperate with NSS and
its insurance underwriters in connection with the procurement of any insurance
policy relating to the operation of the Spacecraft after the expiration of the
term of the Insurance Agreement, including the due diligence inquiry for and
preparation of any such policy. In the event of a Launch failure or a failure of
the NSS Spacecraft in orbit, Contractor shall use all reasonable efforts to
cooperate with NSS and Contractor's and/or NSS' insurance underwriters, in
connection with the investigation, preparation, filing and administration of any
insurance claim pertaining to such Launch or Spacecraft failure.
C. Incentives
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 10. SUBCONTRACTS
A. Subcontracts
Within ninety (90) days after the Effective Date of Contract,
Contractor shall provide a list of all Subcontracts with a value in excess of
Five Hundred Thousand Dollars ($500,000) and shall identify the work to be
provided in each such Subcontract. Changes to this list shall be detailed in
each quarterly report, to be provided by Contractor pursuant to the Statement of
Work.
B. Key Subcontracts
Contractor agrees to enter into major Subcontracts (hereinafter
referred to as "Key Subcontracts") for the Work specified below with the persons
or entities (hereinafter referred to as "Key Subcontractors") listed below.
Contractor further agrees that the Key Subcontractors are necessary for the
successful completion of the Work to be performed hereunder. Contractor shall
not change its Key Subcontractors without NSS' prior written consent.
Key Subcontractor Work
----------------- ----
1. * C/Ku TWTs
2. * Triple Junction GaAs Solar Cells
3. * Loop Heat Pipes
4. * Structure Assemblies
5. * Battery
6. * C/Ku Quad LNAs
7. * C Downconv/Ku Upconv
8. * Ku Downconv
9. * XIPS Thrusters
10. * Reflector Mirrors
11. * 45" DGS Reflector
12. * C-band T/R CP Feed
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 11. PROPERTY ACCOUNTING
A. Identification and Control
Contractor shall be directly responsible for and accountable for all
* , * , subsystems or systems (whether in its possession or, where feasible,
the possession of any of its Subcontractors) which are designated to become the
property of NSS pursuant to the terms of this Contract, and which are part of
the Items to be Delivered under this Contract. For this purpose, Contractor
shall establish and maintain a system to control, protect, preserve and
identify, at all times and until the Delivery and Acceptance of the last Item to
be delivered hereunder, all of the aforementioned property in its possession
*
B. Subcontractors
Contractor shall, where feasible, require Subcontractors who are
responsible for developing or manufacturing any of the Items to be delivered
under the terms of this Contract to comply with provisions similar to the
provisions of this Article.
C. Inventory
Contractor shall maintain an inventory of all NSS designated property
in its possession that has been incorporated into the Spacecraft. Contractor
shall retain and shall use its reasonable efforts to cause Subcontractors to
retain, inventory records of property incorporated into the Spacecraft, until
*
Contractor and Subcontractors shall have inventory records covering the property
incorporated into the Spacecraft available for NSS review and inspection, upon
reasonable notice. If there are no property inventories in Contractor's or
Subcontractors' possession, notification shall also be provided to that effect
to NSS.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 12. CHANGES REQUESTED BY CONTRACTOR OR NSS
A. Contract Change Notice
Any changes requested during the performance of this Contract which
will add or delete Work, affect the design of the Spacecraft, change the method
of shipment or packing, or place or time of any Delivery, or will affect any
other requirement of this Contract, whether proposed by Contractor or NSS, shall
be reflected by Contractor in writing as a contract change notice in accordance
with the Statement of Work ("Contract Change Notice") issued at least thirty
(30) days prior to the proposed date of the change.
B. Acceptance of Change
NSS shall notify Contractor within ten (10) business days after receipt
of a Contract Change Notice whether or not it agrees with and accepts such
change. If NSS agrees with and accepts the change, Contractor shall proceed with
the performance of the Contract as changed, and an amendment to the Contract
reflecting such change, and price and/or schedule adjustments, if any, shall be
issued. If NSS does not agree to implement the change, and the Parties are
unable to reach any other agreement regarding such change, Contractor shall
proceed with the performance of the Contract, as unchanged. NSS shall be
permitted to refer any dispute as to the price of a change to arbitration and/or
authorize the change, subject to binding arbitration under Article 21 as to the
change order price. In circumstances where NSS authorizes Contractor to go
forward pending arbitration, Contractor shall proceed with the change, with the
price effect to be so determined by arbitration; provided that, pending
conclusion of such arbitration, Contractor shall be entitled to receive partial
payment from NSS in the amount of the undisputed portion of the price of the
change, within thirty (30) days after Contractor issues an invoice for such
amount. NSS shall deposit the disputed amount of the change price into an
interest-bearing escrow account to be allocated and distributed between the
Parties at the conclusion of, and in accordance with, the arbitration.
C. Non Refusal
Contractor may not refuse any change that may be requested by NSS
during the performance of this Contract as long as the NSS-requested change is
within the general scope of this Contract and is technically feasible.
D. Price of Changes
All pricing determinations for changes shall be based on the materials
and efforts involved in implementing the change (which shall be described to NSS
in reasonable detail) and such materials and efforts previously required that
will no longer be required.
*
Calculation of expense savings for Work that is not required, regardless of who
requested the change, shall include a deduction for the applicable profit margin
(also to be taken from the base amount of the Operational In Orbit Incentives).
In addition, if certain supplies or materials already acquired for the Work are
made obsolete or excess as a result of a change, NSS shall have the right to
prescribe the manner of disposition of such supplies or materials.
E. Compressed Time Periods
The time periods specified in this Article and in the Statement of Work
for proposing and approving changes may be shortened as necessary to accommodate
exigent circumstances.
F. Changes To Meet Specifications
For the avoidance of doubt, in no event shall NSS be required to pay
for any change, accept any deviation in performances or specifications, or allow
any delay to the extent that Contractor is required to remedy any defects,
including those that may become apparent through the testing or operation of
other spacecraft, all such Work to be performed by Contractor at its sole cost
and expense.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 13. CONTRACT TECHNOLOGY
A. Disclosure of Contract Technology
From the Effective Date of Contract, and for a period of twenty-four
(24) months after the Delivery of the Spacecraft, Contractor shall maintain
copies of all Contract Technology (including Contract Data previously delivered
to NSS hereunder). During such period, and thereafter to the extent such
Contract Technology is retained by Contractor, NSS may have access to and/or
request copies of such Contract Technology to the extent reasonably required for
preparing, launching, testing, maintaining, operating, using or marketing
capacity on or services that employ the Spacecraft. Within seven (7) days after
receipt of such request, Contractor shall furnish copies of the requested
Contract Technology. The cost of furnishing copies of such Contract Technology
shall be borne by the requester and shall include the cost of collecting,
editing, duplicating, assembling and shipping, to the extent not included in the
Contract price, but shall not include any amount associated with the value of
such Contract Technology. The Contractor may, by appropriate marking on Contract
Technology, indicate that such shall be used only in accordance with the terms
of this Contract.
B. Rights Granted in Contract Technology
1. Contract Data. Contractor hereby grants to NSS an irrevocable,
non-exclusive, royalty free, worldwide Right to Use and Right to Publish
Contract Data in connection with * , launching, testing, maintaining,
operating, * , and * the Spacecraft.
2. Contract Intellectual Property. For all Contract Intellectual
Property owned by Contractor or under which Contractor has rights, Contractor
hereby grants to NSS an irrevocable, non-exclusive, royalty free, worldwide
License to Practice under such Contract Intellectual Property in connection with
preparing, launching, testing, maintaining, operating, using, and marketing
capacity on or services that employ the Spacecraft.
C. Limitations
NSS' rights to receive and/or disclose Contract Technology shall be
subject to the Export Laws and Article 27 of this Contract.
ARTICLE 14. RIGHT OF ACCESS, REPORTS, TESTING, MONITORING
A. Access
Subject to compliance with the Export Laws Compliance Program, NSS
shall have the access rights specified below and as described in the Statement
of Work.
1. Work. NSS shall be allowed reasonable access to Contractor's
facilities and to all Work and Work in progress, and all data and information
related to this Contract, for purposes of observation, inspection, examination
and evaluation, at any reasonable time prior to Acceptance of the relevant Item
or termination of this Contract and thereafter to the extent such data and
information are of the type customarily retained in the ordinary course of
business.
2. Subcontracts. Contractor shall provide access rights to NSS to the
subject matters of the Key Subcontracts with * to the same extent as
access is provided to Contractor. For all other Key Subcontracts, Contractor
will use best efforts to negotiate terms that will provide access rights to NSS
to the subject matter of the Key Subcontracts to the same extent as access is
provided to Contractor. For all other Subcontracts, Contractor shall use
reasonable efforts to negotiate terms that will provide access rights to NSS to
the subject matter of the Subcontracts to the same extent as access is provided
to Contractor. Such NSS access shall be coordinated through Contractor's product
assurance program interface.
B. Reports
Subject to compliance with the Export Laws Compliance Program,
Contractor shall deliver to NSS written progress and status reports, test data,
and any final reports, in accordance with the requirements of the Statement of
Work. All reports furnished pursuant to this Paragraph may be used and
distributed by NSS in accordance with the provisions of this Contract.
C. Performance Testing
Subject to compliance with the Export Laws Compliance Program, NSS
shall have the rights with respect to testing set forth below and in the
Statement of Work.
1. Witness of Tests. All developmental, qualification and acceptance
testing of Items required by this Contract may be witnessed by NSS'
representatives at Contractor's or Subcontractor's plant (subject to
Subcontractor's consent which Contractor shall use reasonable efforts to obtain)
or at such other place as the tests are conducted or test results are monitored,
and NSS shall be provided with access to and copies of same to the extent
specified in the Statement of Work or requested by NSS.
2. Acceptance Tests. NSS shall have the right reasonably to specify the
times and places for the undertaking of final acceptance testing of any
Deliverable Hardware to be delivered in accordance with the requirements of this
Contract.
3. Notice of Tests. If Contractor or any Subcontractor establishes the
time, date, or location of any testing required under this Contract, Contractor
shall provide, or cause the Subcontractor to provide, NSS with the advance
notice specified in this Contract, or if not specified, with reasonable advance
notice. Contractor reserves the right to perform any testing under this Contract
without NSS' participation where such prior written notice was provided to NSS.
4. Test Plan. All testing under this Contract shall be undertaken in
accordance with the Test Plan and the Statement of Work.
D. Monitoring
Subject to compliance with the Export Laws Compliance Program,
approximately four (4) of NSS' personnel and consultants shall be located at the
manufacturing site of the Spacecraft for the purpose of monitoring the progress
of the Work as specified in the Statement of Work. Contractor shall provide
office and other facilities to such personnel and consultants as described in
the Statement of Work. In addition, Contractor shall provide adequate parking
spaces for NSS on-site personnel and consultants. NSS personnel and consultants
shall have twenty-four (24)-hour access to the office space provided hereunder.
The witnessing of tests and the monitoring of progress of Work under this
Article 14 shall be subject to Contractor's personnel accompanying NSS personnel
during such activities. Contractor shall obtain from the Key Subcontractors the
rights for Contractor's personnel and for NSS' personnel and consultants to
access the Work in progress related to the Spacecraft at the Key Subcontractors'
plants. To the extent Contractor has similar rights of access to the plants of
other Subcontractors, it shall permit NSS' personnel and consultants to
accompany Contractor's personnel to such plants, subject to the consent of the
Subcontractor, if required.
E. Export Laws Compliance
The export of any Items under this Contract is subject to the approval
of the United States government through its relevant agencies and bodies.
Contractor shall promptly implement the Export Laws Compliance Program described
in Exhibit G to obtain and maintain all authorizations and consents under the
Export Laws necessary to permit NSS to take Delivery of all Items and to permit
NSS, the Launch Services Provider, the insurance underwriters or other third
parties with a need to access to information supplied by Contractor or
Subcontractors under any of the provisions of the Contract, and their respective
personnel and consultants, to have full access to the Work, reports, testing and
monitoring and all information, documents and data related thereto, as specified
in this Contract. Contractor shall use best efforts to obtain such
authorizations and consents prior to the Spacecraft system-level preliminary
design review as set forth in the Statement of Work. Pending receipt of such
authorizations and consents, Contractor shall employ Satellite Consulting, Inc.
as an independent auditor who will provide a minimum of two (2) equivalent man -
months per month of auditor support. Individuals provided by Satellite
Consulting, Inc. for this effort shall have access to all Items and all Work,
reports, testing and monitoring and all information, documents and data related
thereto, to which NSS' and any necessary third parties' access is precluded by
the Export Laws. The independent auditor will have full authority to exercise
any and all access and related rights under the Contract, with respect to the
material and information to which it is given access under the foregoing. At the
time of receipt of the authorizations under the Export Laws Compliance Program,
the independent auditor will transition its access rights to NSS as permitted by
the Export Laws, and NSS shall assume full access rights with respect thereto.
For clarification purposes, the cost of Satellite Consulting, Inc.'s services
shall be borne by Contractor until 5 August 2001; after which, and until such
time as Satellite Consulting, Inc. obtains the proper export authorizations, NSS
will reimburse Contractor for any Satellite Consulting, Inc. costs incurred by
Contractor under the NSS-8 program. Contractor may invoice NSS for these
Satellite Consulting, Inc. costs on a monthly basis (with net 30 days payment
terms) commencing the month of December 2001. Upon receipt by Satellite
Consulting, Inc. of proper export authorization, Contractor shall terminate its
NSS-8 program purchase order with Satellite Consulting, Inc. and invoice NSS for
any remaining amounts due. NSS shall then assume any future procurement
responsibility for Satellite Consulting, Inc.'s services under the NSS-8
program. To the extent any access by NSS specified in this Contract is not
permitted by the Export Laws, the independent auditor specified above shall
continue to have access and the authority to exercise access-related rights on
behalf of NSS. Nothing in this Article 14 shall preclude NSS and any necessary
third parties, during the period when the Export Laws Compliance Program is
pending, from having access to any Items and all Work, reports, testing and
monitoring and all information, documents and data related thereto, to the
extent such access is not precluded by the Export Laws.
ARTICLE 15. WARRANTY
A. Warranty
Contractor warrants that, notwithstanding prior inspection or
Acceptance by NSS:
1. All Deliverable Hardware shall be in good working order and free
from all defects in workmanship and materials and shall conform
with the requirements of this Contract;
2. All Deliverable Data shall conform with the requirements of this
Contract; and
3. All Services shall be performed in a skillful and workmanlike
manner and shall conform with the requirements of this Contract.
Contractor shall pass through to NSS any warranties regarding Launch
Services that Contractor obtains
from the Launch Services Provider.
B. Remedies
Promptly after receipt of written notification from NSS that Work is
defective or non-conforming, Contractor shall, * ,
either (i) correct, repair or replace, at Contractor's sole expense, any
defective or non-conforming Work so as to comply with the above warranties, or
(ii) reimburse NSS for such portion of the price as is equitable; provided that,
to the extent NSS recovers amounts for particular defective work by obtaining a
reduction in the Firm Fixed Price pursuant to Exhibit F, NSS shall not be
entitled to receive a warranty reimbursement for such defect. The remedies
stated herein shall not apply to the extent a defect results from willful
misconduct or gross negligence on the part of NSS, its employees, agents,
consultants or representatives.
C. Warranty Period
The above warranties shall continue for a period of * (*) years from
the date of Acceptance of each Item, except, however, all corrections, repairs
and replacements made pursuant to this Article by Contractor after Acceptance
shall be so warranted for a period of * (*) years from the date of Acceptance of
such corrections, repairs or replacements. The warranties in this Article shall
not apply to a Spacecraft after Acceptance; provided the foregoing shall not be
construed to relieve Contractor of any liability that may arise out of any
willful, knowing or reckless misrepresentation to NSS by Contractor hereunder.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
D. Disclaimer
Except as otherwise set forth herein and in other articles of this
Contract, Contractor expressly disclaims any express or implied warranties,
including without limitation, warranties of fitness for a particular purpose and
merchantability.
E. Not Exclusive Rights
*
ARTICLE 16. DEFICIENCIES NOTED IN OTHER SPACECRAFT
A. Qualification Heritage
*
B. Notice
Whether before or after Acceptance of the Spacecraft, Contractor shall
immediately notify NSS of any circumstance, known to or suspected by Contractor
that would make any statement set forth in Paragraph 16.A., if made at the time,
no longer the case, and of any other data available to it that indicates (i)
that conditions exist which affect or may affect adversely the Spacecraft
operation, or (ii) that the Spacecraft performance and/or operation depart or
may depart from that expected from the program documentation at any time during
the period of the Spacecraft's Orbital Maneuver Life, or (iii) that the
Spacecraft does not meet all the requirements of the Spacecraft Performance
Specifications, or can not be reasonably predicted to be able to meet the
requirements of the Spacecraft Performance Specifications for the full Orbital
Maneuver Life. Contractor shall take prompt appropriate corrective measures at
its sole cost in any Spacecraft that has not been Launched so as to eliminate
all the deficiencies so noted or suspected, to NSS' satisfaction. NSS shall have
the right to reject, until Intentional Ignition any Spacecraft that does not
meet the requirements of this Article 16. Thereafter, NSS' obligations to
complete Delivery and Acceptance of the Spacecraft shall be governed by other
provisions of this Contract.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 17. TERMINATION FOR CONVENIENCE
A. Termination
NSS may, prior to Contractor's completion of all Work, by written
notice issued by NSS' Authorized Representative, terminate this Contract (except
for any Items for which Delivery and Acceptance have been completed) for its
convenience, whereupon Contractor shall cease Work in accordance with the terms
of said notice.
B. Termination Expense
Contractor shall promptly submit to NSS a detailed written statement of
Contractor's total out of pocket expense incurred in the performance of Work and
total out of pocket expenses resulting from such termination as determined in
accordance with Contractor's standard accounting practices and, at NSS' request
and expense, verified to NSS by Contractor's or other reputable independent
certified public accountants (hereinafter referred to as "Total Verified
Termination Expense").
C. Termination Charges
Termination charges shall be negotiated by NSS and Contractor based
upon the Total Verified Termination Expense plus a profit margin of * percent (
*%).
1. Maximum Charge. In no event shall termination charges exceed the
lesser of (i) the Total Verified Termination Expense plus the profit margin
specified above or (ii) the Total Firm Fixed Price, including the net present
value of Operational In Orbit Incentives determined at the NPV Discount Rate on
the date of termination, but excluding the cost of the Launch Services and/or
insurance if procured by NSS pursuant to Paragraphs 8.B. and 8.D. and 9.A.2., or
(iii) based upon the date of termination, the amount specified in the Maximum
Termination Liability Schedule shown in Exhibit H hereto.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
2. Payment. Termination charges, as negotiated, less (i) amounts
previously paid by NSS pursuant to this Contract and (ii) amounts representing
termination charges attributable to Deliverable Hardware and the Launch Services
Agreement and Insurance Agreement and other rights associated therewith (to the
extent NSS does not elect to retain same) which Contractor or any of its
Subcontractors elects to retain (which election Contractor shall make as to each
item for which it has another reasonably compatible use), shall be paid by NSS
(or, if a net refund is due, by Contractor) within sixty (60) days after receipt
of Contractor's (or, if applicable, NSS') invoice therefor.
D. Subcontractor Settlements
Contractor shall advise NSS of all proposed settlements with vendors
and Subcontractors in the event of termination, and Contractor further shall not
enter into any binding settlement until NSS has approved the proposed settlement
or until thirty (30) days have elapsed from the date when NSS was advised of the
proposed settlement, without approval or objection by NSS.
E. Inventory
In the event of such a termination, all inventory generated under this
Contract, except that retained by Contractor or Subcontractors pursuant to
Paragraph 17.C.2., shall become the property of NSS.
F. Termination of Launch
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 18. TERMINATION FOR OTHER REASONS
A. Termination by NSS for Cause
NSS may, by written notice issued by NSS' Authorized Representative,
terminate this Contract, in whole or in part (except for any Items for which
Delivery and Acceptance have been completed) if:
1. there is a cumulative delay in Delivery of an Item past the
Promised Delivery Date, which is not excusable pursuant to Article
19 hereof, and which exceeds a cumulative period of * ( * )
days or it * ;
2.
*
3. Contractor commits a material breach of this Contract or otherwise
fails to perform any other material provisions of this Contract,
and such breach or failure is not cured within thirty (30) days
from the date of such notice; or
4. Contractor shall (i) apply for or consent to the appointment of a
receiver, trustee, custodian, intervenor or liquidator of itself
or substantially all of its assets; (ii) file a voluntary petition
in bankruptcy, admitting, in writing, that it is unable to pay its
debts as they become due; (iii) make a general assignment for the
benefit of creditors; (iv) file a petition or answer seeking
reorganization or arrangement with creditors to take advantage of
any bankruptcy or insolvency laws; (v) file an answer admitting
the material allegations of, or consent to, or default in
answering, a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding where such action or
failure to act will result in a determination of bankruptcy or
insolvency; or (vi) downsize or discontinue its commercial
communications spacecraft manufacturing business such that
Contractor's ability to perform its obligations under this
Contract is impaired.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
Upon termination pursuant to this Paragraph 18.A., NSS shall receive, within
thirty (30) days of termination, (i) a full refund of all payments made by NSS
under this Contract (including any amounts paid directly or indirectly for
Launch Services and insurance pursuant to Articles 8 and 9, unless NSS elects to
retain or obtain the rights to such Launch Services and/or insurance) with
respect to the terminated Items, plus (ii) interest on such amounts at the NPV
Discount Rate, plus (iii) the full amount of the price adjustments for late
Delivery specified in Paragraph 4.C.2.a., in which event NSS shall relinquish
all of its rights to Items not retained by NSS or for which Delivery and
Acceptance have not been completed, and return or destroy all Deliverable Data
not related to Items for which Delivery and Acceptance have been completed
previously that is in tangible form.
B. NSS Termination for Unsuccessful Launch
If there is not a successful Launch of the Spacecraft due to
non-performance of the Launch Vehicle, NSS may, by written notice issued by NSS'
Authorized Representative, terminate this Contract with respect to the
Spacecraft and any related deliverable items. Upon termination pursuant to this
Paragraph 18.B., NSS shall receive immediately after Contractor receives
insurance proceeds from such unsuccessful Launch but in no event later than
sixty (60) days after termination, (i) a full refund of all payments made by NSS
under this Contract (including any amounts paid directly or indirectly for
Launch and insurance pursuant to Articles 8 and 9) with respect to the
terminated Items (but specifically excluding any price adjustments for late
Delivery specified in Paragraph 4.C.2.a.), plus (ii) interest on such amounts at
the NPV Discount Rate, in which event NSS shall relinquish all of its rights to
Items related to such Spacecraft for which Delivery and Acceptance have not been
completed, and return or destroy all Deliverable Data not related to Items for
which Delivery and Acceptance have been completed previously that is in tangible
form.
*
C. NSS Termination for Spacecraft Failure Prior to Delivery
If there is a successful Launch of the Spacecraft, but due to
Spacecraft anomalies, Unconditional Acceptance or Conditional Acceptance does
not occur, NSS may, by written notice issued by NSS' Authorized Representative,
terminate this Contract with respect to such Spacecraft and related deliverable
Items. Upon termination pursuant to this Paragraph 18.C., NSS shall receive
within thirty (30) days of termination, (i) a full refund of all payments made
by NSS under this Contract (including any amounts paid directly or indirectly
for Launch and insurance pursuant to Articles 8 and 9) with respect to the
terminated Items, plus (ii) interest on such amounts at the NPV Discount Rate,
plus (iii) the full amount of the price adjustments for late Delivery specified
in Paragraph 4.C.2.a., in which event NSS shall relinquish all of its rights to
Items related to such Spacecraft for which Delivery and Acceptance have not been
completed, and return or destroy all Deliverable Data not related to items for
which Delivery and Acceptance have been completed previously that is in tangible
form.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
D. NSS Termination for Excusable Delay
If there is a cumulative delay in Delivery of an Item past the Promised
Delivery Date which exceeds a cumulative period of * (*) days (no more than *
(*) of which are not excusable pursuant to Article 19),
*
NSS may, by written notice issued by its Authorized Representative,
terminate this Contract with respect to the Spacecraft and any related
deliverable Items. Upon termination pursuant to this Paragraph 18.D., NSS shall
receive, within thirty (30) days of termination,
*
in which event NSS shall relinquish all of its rights to Items related to such
Spacecraft (except for insurance and any Launch Services for which it receives
no refunds), and return or destroy all Deliverable Data not related to such
Items.
E. Improper Termination
If, after termination under the provisions of Paragraphs 18.A., 18.B.,
or 18.C., it is determined for any reason that the Contract was terminated
improperly under the provisions of this Article, the rights and obligations of
the Parties shall be the same as if termination had been effected pursuant to
Article 17.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
F. Termination of Launch
*
ARTICLE 19. EXCUSABLE DELAYS
A. Non Launch Related Delays
Delays in Delivery resulting from acts of God or of the public enemy,
acts of a government in its sovereign capacity (but expressly excluding any
delays arising out of the Export Laws), fires, earthquakes, floods, riots, acts
of war, strikes and lock-outs (excluding strikes and lock-outs at
Contractor-owned or operated facilities), epidemics, quarantine restrictions,
and freight embargoes, provided in every case such acts or occurrences are
beyond the reasonable control and without the fault or negligence of Contractor
and its Subcontractors, shall constitute excusable delays if a written claim
thereof together with information sufficient to support such claim is received
by NSS within twenty (20) days after the start of each such act or occurrence.
Contractor shall provide written evidence of the period of such delay.
Contractor shall use its best efforts to minimize the effect of any force
majeure delay including (without limitation) through the use of work-around
schedules, twenty-four (24)-hour operations, and through the use of alternative
suppliers (to be approved by NSS where required under Article 10). Subject to
NSS' rights under this Contract, the Delivery requirements shall be extended by
the amount of such period as is supported by the evidence provided.
B. Launch Related Delays
As it relates to the Launch Services Provider, any postponement of the
Launch of the Spacecraft caused by (i) any of the events described in Paragraph
19.A. above, (ii)
* shall
constitute an excusable delay.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 20. KEY PERSONNEL
It is agreed that the following Contractor employees and positions are
necessary for the successful performance of this Contract:
Key Personnel Position
------------- --------
* Program Manager
* Program Engineering Manager
* Lead Payload Engineer
* Systems Lead
* Lead Bus Engineer
* Contracts Manager
* Ground Systems Lead
* PA Manager
* Systems Lead (Deputy)
* Antenna Lead
In the event one (1) or more of the above-named personnel are no longer
available for the performance of this Contract, Contractor agrees to replace
such personnel with personnel of a comparable level of experience,
qualifications and ability, and such replacement shall be subject to NSS'
approval.
ARTICLE 21. DISPUTES
Any dispute or disagreement arising between Contractor and NSS in
connection with this Contract, which is not settled within thirty (30) days (or
such longer period as may be mutually agreed upon by the Parties) from the date
that either Party notifies the other in writing that such dispute or
disagreement exists, at the request of either Party may be settled under the
Rules of Conciliation and Arbitration of the International Chamber of Commerce,
in effect on the date that such request is made, by three (3) arbitrators. Each
Party shall select one (1) arbitrator and the two (2) arbitrators so selected
shall select the third (3rd) arbitrator; provided that if the two (2)
arbitrators selected by the Parties cannot agree on a third arbitrator within
thirty (30) days of their selection by the Parties, the third arbitrator shall
be appointed in accordance with the Rules of Conciliation and Arbitration. The
arbitration proceedings shall be conducted in the United Kingdom. The
arbitration resolution shall be final and binding upon the Parties and judgment
may be entered thereon, upon the application of either Party, by any court
having jurisdiction. Each Party shall bear the cost of preparing and presenting
its case; and the cost of arbitration, including the fees and expenses of the
arbitrators, will be shared equally by the Parties unless the resolution
otherwise provides.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 22. INDEMNIFICATION
A. General Indemnification
* shall indemnify and hold *, its officers, directors, agents,
employees, owners, subsidiaries, affiliates, successors and assigns, or any of
them, harmless from any and all loss, damage, liability or expense resulting
from damage (excluding damage to the Spacecraft caused after Acceptance) and
injuries, including death, to all persons (natural or juridical), arising from
any occurrence caused by a material act or omission of * , * , or any of
them, and * shall at its sole expense defend any claims, actions, suits and
proceedings, whether in law or equity, brought against * , its officers,
directors, agents, employees, owners, subsidiaries, affiliates, successors and
assigns, or any of them, on account thereof, and shall pay all expenses,
including attorney's fees, and satisfy all judgments as may be incurred by or
rendered against them, or any of them, in connection therewith, provided * is
given prompt notice of any such claim, action, suit or proceeding. * shall
provide, at * written request and sole expense, such assistance and
information as may be reasonably provided by * in connection with the defense of
any such action. Notwithstanding the foregoing, for the period commencing at
Intentional Ignition through Spacecraft separation from the Launch Vehicle,
Contractor shall indemnify NSS for damages caused by the nonperformance of the
Launch Services only to the extent that the Launch Services Provider provides
such indemnity under the Launch Services Agreement.
B. Intellectual Property Indemnification
* shall, at its expense, defend, indemnify and hold * , its
officers, directors, agents, sublicensees, owners, subsidiaries, affiliates and
employees, successors or assigns or any of them harmless from and against any
and all claims, losses, actions, damages, expenses and all other liabilities,
including but not limited to costs and reasonable attorneys' fees, resulting
from any claim against an indemnified party by any third party, for infringement
or other violation of any patent, copyright, trademark, trade secret rights, or
any other intellectual property rights arising from preparing, launching,
testing, maintaining, operating, using, and marketing capacity on or services
that employ the Spacecraft or in connection with any Item; the performance of
Work; or any Contract Technology owned by * and/or licensed by * to *
under this Contract.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
If an injunction or other order is obtained against the manufacture,
preparation, use, lease, sale or other disposition of any deliverable Item,
Contractor agrees to use its best efforts either to procure rights so that such
deliverable Item and the manufacture, preparation, use, lease, sale or other
disposition thereof is no longer infringing or to modify or replace such
deliverable Item, subject to NSS' technical approval, so that it is no longer
subject to such injunction or order. In the event that neither of the foregoing
alternatives is suitably accomplished, * shall be liable to * , its successors
and assigns, or any of them, for all additional costs and damages resulting from
such injunction or order.
C. Indemnification For Taxes
Contractor shall assume responsibility for, and shall hold NSS harmless
from all taxes, duties (except for import duties related to Items delivered to
NSS, or Services performed for NSS, in The Netherlands), tariffs or similar
charges, however denominated, which may be required under any present or future
law or laws, and which become due by reason of the performance of Work under
this Contract or any Subcontract hereunder, and shall execute and deliver such
other further instruments, and comply with such requirements of said laws, as
may be necessary thereunder to confirm and effectuate this Contract, including
making of payment of any interest or penalties related to or arising from such
taxes, duties, tariffs or other charges.
D. Procedures
In the event * employs any attorney, accountant, engineer or consultant
to assist in defense of any matter pursuant to this Article 22, such attorney,
accountant, engineer or consultant shall be reasonably satisfactory to the
indemnified party. If * does not employ counsel to take charge of the defense,
the indemnified party shall, at the sole expense of * , employ separate counsel
and direct such defense on its own behalf. No settlement of any claim, action,
proceeding or suit shall admit liability on the part of an indemnified party
without such indemnified party's prior written consent, which may be given or
withheld in an indemnified party's sole discretion.
ARTICLE 23. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION HEREIN TO THE CONTRARY, NEITHER
PARTY SHALL BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS OR REVENUES,
OTHER THAN FOR A WILLFUL BREACH OR GROSS NEGLIGENCE. THE FOREGOING LIMITATIONS
SHALL NOT APPLY TO A PARTY'S OBLIGATIONS TO INDEMNIFY A THIRD PARTY CLAIM
PURSUANT TO ARTICLE 22 OR ANY OTHER PROVISIONS OF THIS CONTRACT RELATING TO
INDEMNIFICATION OF A THIRD PARTY CLAIM.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 24. DAMAGE TO PERSONS OR PROPERTY, ASSOCIATED WITH LAUNCH, INTERPARTY
WAIVER
Each Party agrees to be bound to such interparty waiver as the Launch
Services Provider may set forth in the Launch Services Agreement, provided that
the waiver contains reciprocal rights for both Parties and is substantially
consistent with the standard provisions of such Launch Services Provider.
ARTICLE 25. REPRESENTATIONS AND WARRANTIES
A. Mutual Representations and Warranties
Each Party represents, covenants and warrants to the other that:
1. Existence. It is a corporation, duly organized and validly existing
and with the power to undertake the obligations set forth in this Contract.
2. Authority. All corporate action required to be taken by it to
execute, deliver and perform the terms of this Contract have been taken.
3. Binding Agreement. The execution and delivery of this Contract by it
will cause this Contract to constitute a legal, valid and binding obligation of
it enforceable in accordance with its terms, except where enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors rights generally or general principles of
equity.
B. Contractor's Special Representations and Warranties
Contractor represents, covenants and warrants to NSS that:
1. Contract Intellectual Property. None of the Contract Intellectual
Property is, to the best of Contractor's knowledge, the subject of infringement
or other violations of intellectual property protections by any third party; and
all of the Contract Intellectual Property is free from any lien, claim or other
encumbrance, including as a pledge of collateral. Contractor shall employ all
reasonable commercial efforts to retain all Contract Intellectual Property.
2. Contract Technology. There are no claims filed, or, to the best of
Contractor's knowledge, threatened that any of the Contract Technology or the
practice thereof infringe or violate in any way any patent or other intellectual
property rights of any third party. Contractor has the authority to grant to NSS
the licenses and rights to the Contract Technology according to the terms of
this Contract.
ARTICLE 26. ASSIGNMENT
Neither this Contract nor any of the rights, duties, and obligations of
Contractor or NSS under this Contract may be assigned or delegated by either
Party without the prior written consent of the other Party, not to be
unreasonably withheld, conditioned or delayed. Any attempted assignment or
delegation, without such consent, shall be void and without effect.
Notwithstanding the foregoing, NSS may assign this Contract or any of its rights
and obligations, including but not limited to any warranties and indemnities,
with a right to reassign, without Contractor's consent: (i) to a subsidiary of
NSS, or (ii) to a joint venture in which NSS is a majority participant or holds
at least a twenty-five percent (25%) ownership interest; and either Party may
assign this Contract or any of its rights and obligations, including but not
limited to any warranties and indemnities, with a right to reassign without
consent of the other Party (x) to any entity that acquires or succeeds, by
merger or other vehicle, to all or substantially all of the assigning Party's
assets, or (y) to a financial institution as security in connection with a bona
fide financing transaction. Any assignment of the Contract shall not relieve the
assignor of its obligations hereunder unless the assignor provides the other
Party with reasonable evidence of the financial viability of the assignee, which
evidence is reasonably acceptable to such other Party, or unless such other
Party otherwise agrees to release the assignor of its obligations hereunder.
This Contract shall be binding upon and inure to the benefit of the
Parties and their respective permitted successors and assigns.
ARTICLE 27. CONFIDENTIALITY
A. Identification of Proprietary Information
All information, in whatever form, orally or in any written or
electronic form, that has been or may be disclosed in the future by one Party to
the other in connection with this Contract shall be deemed proprietary
information, if written, if marked "proprietary" or "confidential," or if
disclosed orally, if so stated to the receiving Party by the disclosing Party at
the time of disclosure and reduced to writing no later than thirty (30) days
after the disclosure (together "Proprietary Information"). In addition, and
without limitation, Contractor acknowledges and agrees that all information
regarding NSS' contemplated use of or customers for the Spacecraft, areas of
coverage or antenna plots, potential types of traffic or related requirements,
health and expected life of existing satellites, the performance of the
Spacecraft and any anomalies with respect thereto, and all information that
could be revealing of the foregoing, shall be deemed NSS' Proprietary
Information and "Company Restricted Information."
B. Restrictions on Use, Disclosure
Neither Party shall use the Proprietary Information of the other Party
except for the purpose of this Contract. Neither Party shall disclose the
Proprietary Information of the other Party except: (1) on a confidential and
need-to-know (for the purposes specified herein) basis to its employees, agents,
and advisors (and with respect to NSS, its insurance underwriters, launch
service providers, investors, lenders and TT&C operators), each of whom shall be
subject to comparable restrictions of confidentiality; (2) as to information
that is already rightfully in the possession of the receiving Party through
other means and without such confidentiality restrictions; (3) as to information
that is required to be disclosed under applicable law or by a valid subpoena or
other court or governmental order, decree, regulation or rule; provided,
however, that if disclosure is required under this provision, the receiving
Party shall advise the disclosing Party of the requirement to disclose
Proprietary Information prior to such disclosure and as soon as reasonably
practicable after the receiving Party becomes aware of such required disclosure;
and further provided that upon the request of the disclosing Party, the
receiving Party agrees to cooperate in good faith and at the expense of the
disclosing Party in any reasonable and lawful actions which the disclosing Party
takes to resist such disclosure, to limit the information to be disclosed or to
limit the extent to which the information so disclosed may be used or made
available to third parties; (4) as to information that is released for public
disclosure by the disclosing Party; (5) as to information that is developed by
the receiving Party independently of any Proprietary Information of the
disclosing Party. Notwithstanding any other rights of either Party, either Party
may seek injunctive relief in any count of competent jurisdiction against
improper use or disclosure of Proprietary Information.
C. Company Restricted Information
In addition to the obligations set forth above, Contractor agrees that
its disclosure of Company Restricted Information under Paragraph 27.B. above
shall be limited to individuals within the Boeing Satellite Systems (BSS)
business unit of Contractor who have no responsibility for, or participation in,
any venture in which Contractor may have any interest that involves the direct
sales and/or leasing of satellite transponder capacity or the provision of any
satellite communications services, including any individuals who may have dual
roles. Contractor employees outside Contractor's business unit who have
responsibility for evaluation and oversight of BSS' operations will be provided
Company Restricted Information only to the extent required for performance of
their duties and only after they are advised of their responsibilities under
this Contract.
D. Standard of Care
Each Party agrees to exercise a level of care consistent with that
employed by said Party for its most highly restricted and proprietary
information to ensure compliance with its obligations stated herein.
E. Property of Disclosing Party
Proprietary Information shall be deemed the property of the disclosing
Party and, upon request, the receiving Party shall return or destroy all
Proprietary Information received from the disclosing Party, including any
compilations thereof, to the extent that either may be in tangible form.
ARTICLE 28. PUBLIC RELEASE OF INFORMATION
Within a reasonable time prior to the issuance of news releases,
articles, brochures, advertisements, prepared speeches and other information
releases concerning the work performed hereunder by Contractor, a Subcontractor
or any employee or a consultant of either, Contractor shall obtain the written
approval of NSS concerning the content and timing of such releases. NSS'
approval will not be unreasonably delayed or denied.
ARTICLE 29. NOTICES AND REPORTS, AUTHORIZED REPRESENTATIVES
All notices and reports to be provided to NSS or Contractor under this
Contract shall be in writing, in English, and sent to NSS or Contractor by
courier, by certified mail (postage prepaid) or by facsimile (with confirmation
by courier or certified mail) at the following addresses (or to such other
address as each Party may give the other by notice to the other in accordance
with this Article 29):
NSS: NSS-8 Program Office
Building S12, M/S W341
c/o Boeing Satellite Systems, Inc.
P.O. Box 92919
Los Angeles, CA 90009-2919
Attention: NSS-8 Program Manager
Facsimile No.: 1-310-426-1443
with a separate New Skies Satellites N.V.
copy sent to: Rooseveltplantsoen # 4
2517KR The Hague
The Netherlands
Attention: Vice President, Space Segment Techology
Facsimile No.: +31 70 306 4285
New Skies Satellites N.V.
Rooseveltplantsoen # 4
2517KR The Hague
The Netherlands
Attention: General Counsel
Facsimile No.: +31 70 306 4289
CONTRACTOR: Boeing Satellite Systems International, Inc.
P.O. Box 92919
Los Angeles, CA. 90009
Attention: Mr. Dennis Beeson
Contracts Manager
Bldg. S52, Mail Sta. Z103
Facsimile No.: (310) 364-5721
For purposes of binding each Party under provisions of this Contract,
the "Authorized Representative" of NSS shall be it's a) Chief Technology
Officer, currently Dr. Stephen Stott, or b) General Counsel, currently Ms. Mary
Dent, or c) Vice President, Space Segment Technology Division, currently Mr.
Leroy A. Argyle, and the Authorized Representative of Contractor shall be its
Contracts Manager, currently Dennis Beeson. Each Party may change or add to its
list of Authorized Representatives by giving notice to the other Party (signed
by the notifying Party's then-current Authorized Representative) pursuant to the
Contract notice provisions above.
ARTICLE 30. OPTIONS
A. Optional Spacecraft
1. Similar Spacecraft
NSS may, at its option, exercisable at any time on or before * ( *)
months after the Effective Date of the Contract, elect to procure from
Contractor one (1) additional spacecraft ("Optional Spacecraft") substantially
similar to the Spacecraft specified in Article 3, with the exception of
potential changes in the coverage areas. Contractor's firm-fixed price for such
Optional Spacecraft is
* Dollars
(*). The firm fixed price includes an upgrade to the Spacecraft simulator
delivered pursuant to Article 3 to include the similar Optional Spacecraft, plus
all other deliverable Items and Services specified in the Statement of Work.
Upon exercise of such option, Contractor shall immediately commence construction
of such Optional Spacecraft and shall use its best efforts to ship such Optional
Spacecraft to the launch site within * (*) months after exercise of the
option, but in no case earlier than * (*) months after shipment of NSS 8.
Contractor's price for such Optional Spacecraft specified above is Contractor's
price for such Optional Spacecraft having the general specifications and payment
terms as the Spacecraft to be delivered pursuant to Article 3 and includes
launch and mission operations for the Sea Launch Vehicle only. Upon exercise of
its option for the Optional Spacecraft, NSS and Contractor shall meet promptly
and shall negotiate in good faith to reach final resolution of the
specifications and the corresponding adjustment (if any) to the firm fixed price
and/or delivery schedule resulting from changes in scope for such Optional
Spacecraft, including, if requested by NSS, prices for launch and insurance of
such Optional Spacecraft. Upon completion of such negotiations, this Contract
shall be amended to include Delivery of such Optional Spacecraft selected by NSS
and such Optional Spacecraft shall be constructed, delivered and accepted
pursuant to the provisions of this Contract in the same manner and to the same
extent as the Spacecraft specified in Article 3 is constructed, delivered and
accepted hereunder.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
2. Spacecraft for *
NSS may, at its option, exercisable at any time on or before twelve
(12) months after the Effective Date of the Contract, elect to procure an
Optional Spacecraft suitable for deployment at * with the general specifications
set forth in Exhibit M and having the general payment terms as the Spacecraft to
be delivered pursuant to Article 3. Contractor's firm-fixed price for such
Optional Spacecraft and Sea Launch Vehicle is * Dollars ($ *)
*
Dollars ($ *)
* . The
firm fixed price includes an upgrade to the Spacecraft Simulator delivered
pursuant to Article 3 to include the Optional Spacecraft, plus all other
deliverable Items and Services specified in the Statement of Work. Upon exercise
of such option, Contractor shall immediately commence construction of such
Optional Spacecraft and shall use its best efforts to deliver such Optional
Spacecraft within * (*) months after exercise of the option, but in no case
earlier than * (*) months after delivery of NSS-8.
*
Contractor's price for such Optional Spacecraft specified above is Contractor's
price for such Optional Spacecraft having the general specifications disclosed
by NSS to Contractor prior to the Effective Date of Contract. Upon exercise of
its option for the Optional Spacecraft, NSS and Contractor shall meet promptly
and shall negotiate in good faith to reach final resolution of the
specifications and corresponding adjustment (if any) to the firm fixed price
and/or delivery schedule resulting from changes in scope for such Optional
Spacecraft, including, if requested by NSS, prices for insurance of such
Optional Spacecraft. Upon completion of such negotiations, this Contract shall
be amended to include Delivery of such Optional Spacecraft selected by NSS and
such Optional Spacecraft shall be constructed, delivered and accepted pursuant
to the provisions of this Contract in the same manner and to the same extent as
the Spacecraft specified in Article 3 is constructed, delivered and accepted
hereunder.
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
3. Spacecraft for Later Delivery
(a) 105(0) W.L. Spacecraft. NSS may, at its option,
exercisable at any time on or before December 1, 2004, elect to procure from
Contractor an Optional Spacecraft, for use in the 105(0) W.L. orbital location.
This option shall be based upon a BS-601HP, BS-601 or BS-376 spacecraft bus and
shall include Contractor's provision of a suitable launch vehicle, launch
operations, mission operations and all other Deliverable Items and Services
specified in the Statement of Work, and Delivery of such Optional Spacecraft in
orbit at 105(0) W.L. within a nominal time period of twenty-four (24) months
after exercise of the option. Within thirty (30) days after notice from NSS of a
desire to consider this option, with such notice to be given not later than
November 1, 2004, Contractor shall present to NSS a firm-fixed price proposal
for such Optional Spacecraft which shall be based on the cost to manufacture the
Optional Spacecraft and provide the related Services and Deliverable Items, plus
a profit of * percent (*%) of such cost, plus the cost of the launch vehicle
and associated services. NSS shall have thirty (30) days after receipt of such
proposal to exercise the option, during such thirty (30) day period the Parties
shall meet and negotiate in good faith to reach final resolution of the
specifications, Delivery schedule, and any other terms and conditions not
otherwise already covered by this Contract. Upon completion of such
negotiations, NSS may exercise this option and this Contract shall be amended to
include Delivery of such Optional Spacecraft selected by NSS and such Optional
Spacecraft shall be constructed, delivered and accepted pursuant to the
provisions of this Contract, as amended, in the same manner and to the same
extent as the Spacecraft specified in Article 3 is constructed, delivered and
accepted hereunder.
(b) CONUS Spacecraft. NSS may, at its option, exercisable at
any time on or before December 1, 2004, elect to procure from Contractor one (1)
or more Optional Spacecraft capable of serving the Continental United States
("CONUS") and utilizing C-band and/or Ku-band frequencies. Such Optional
Spacecraft shall be based upon a BS-601HP, BS-601 or BS-376 spacecraft bus and
shall include Contractor's provision of a suitable launch vehicle, launch
operations, mission operations and all other Deliverable Items and Services
specified in the Statement of Work, and Delivery of such Optional Spacecraft in
orbit within a nominal time period of twenty-four (24) months after exercise of
the option. Within thirty (30) days after notice from NSS of a desire to
consider this option, Contractor shall present to NSS a firm-fixed price
proposal for such Optional Spacecraft which shall be based on the cost to
manufacture the Optional Spacecraft and provide the related Services and
Deliverable Items, plus a profit of * percent (*%) of such cost, plus the
cost of the launch vehicle and associated services. NSS shall have thirty (30)
days after receipt of such proposal to exercise the option, during such thirty
(30) day period the Parties shall meet and negotiate in good faith to reach
final resolution of the specifications, Delivery schedule, and any other terms
and conditions not otherwise already covered by this Contract. Upon completion
of such negotiations, NSS may exercise this option and this Contract shall be
amended to include Delivery of such Optional Spacecraft selected by NSS and such
Optional Spacecraft shall be constructed, delivered and accepted pursuant to the
provisions of this Contract, as amended, in the same manner and to the same
extent as the Spacecraft specified in Article 3 is constructed, delivered and
accepted hereunder.
B. Replacement Spacecraft
In the event that after Launch and prior to Acceptance, the Spacecraft
becomes a total constructive loss as specified in the Insurance Agreement, NSS
may, at its option exercisable within * (*) days of the total constructive loss
event, elect to procure a Replacement Spacecraft having the same design and
specifications as the Spacecraft. The total firm fixed price for the Replacement
Spacecraft (including payments for deliverable Items and Services specified in
the Statement of Work, with the exception of the Launch Services and insurance
payments) shall not exceed
* Dollars
($ *). This price assumes launch and mission operations for the Sea Launch
Vehicle. If NSS desires to launch the Replacement Spacecraft on an alternate
launch vehicle, such change shall constitute a Contract Change Notice in
accordance with Article 12. Contractor's price for such Replacement Spacecraft
specified above is Contractor's price for such Replacement Spacecraft having the
general payment terms as the Spacecraft to be delivered pursuant to Article 3.
Upon exercise of this option by NSS, Contractor shall commence construction of
the Replacement Spacecraft and shall deliver it to the designated Launch Site
within * (*) months after the exercise of the option. Except for the foregoing,
the Replacement Spacecraft otherwise shall be constructed, tested, delivered and
accepted in the same manner and to the same extent as the Spacecraft specified
in Article 3 is constructed, tested, delivered and accepted hereunder.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
C. Optional Storage and Retest
1. Storage at Contractor's Expense. If the Spacecraft has not been
Launched by the Promised Delivery Date, at NSS' option, Contractor shall place
the Spacecraft in storage at Contractor's facilities, or such other facilities
as Contractor may arrange, which alternate facilities must have been approved by
NSS. So long as NSS has not terminated this Contract, Contractor shall continue
to store, and perform any necessary testing or refurbishment on, such
Spacecraft, at Contractor's expense, until such Spacecraft is Launched, and
Delivery and Acceptance thereof has been completed under this Contract, but not
to exceed six (6) months.
2. Storage at NSS' Expense. Following * storage of the Spacecraft by
Contractor, NSS may elect to direct Contractor to continue to store the
Spacecraft for an additional period of time provided that the total storage
period, including the earlier free period, does not exceed three (3) years. The
firm fixed prices for such storage shall be as set forth in the table below:
- -------------------------------------------------------------------------------
Storage Duration
---------------------------------------------
Optional Storage Prices 1 Year 2 Years 3 Years
- -------------------------------------------------------------------------------
Total Storage Price(1) $ * $ * $ *
Monthly Storage Fee Adjustment $ * $ * $ *
- ---------------------------------------------- --------------------------------
(1) Total Storage Price adjusted downward by the Monthly Storage Fee Adjustment
if Spacecraft removed from storage before completion of applicable year
- -------------------------------------------------------------------------------
The price for any refurbishment and retest of the Spacecraft after storage is
included in the above prices.
In the event that NSS elects to deliver the Spacecraft to storage for any
reason, NSS shall pay Contractor the milestone payment for completion of IOT
upon delivery of the Replacement Spacecraft to storage and NSS shall commence
payments to Contractor for all Operational In Orbit Incentive payments for such
stored Spacecraft (in accordance with Paragraph 5.E.) as though Unconditional
Acceptance had been achieved, subject to any adjustments or refunds if, after
the Launch of the Spacecraft, its performance is such that adjustments to the
Operational In Orbit Incentives are appropriate pursuant to Exhibit F. For
storage periods greater than twelve (12) months, prices for launch and mission
operations will be escalated at a rate of 3% per annum.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
D. Intentionally Omitted
E. In-Orbit Test Location
On or before the later to occur of i) * (*) months prior to the IOT
or, ii) * (*) months following submittal by Contractor to NSS of the IOT earth
station requirements document, NSS shall have the option to require Contractor
to supply all ground facilities necessary to conduct the IOT. If NSS exercises
this option, Contractor shall supply such on ground facilities at a price not to
exceed
* Dollars ($ *).
ARTICLE 31. NSS FURNISHED INFORMATION AND PROPERTY
Contractor agrees, with respect to all Information and property,
including but not limited to equipment, models and devices, furnished by NSS
under this Contract:
A. Title
That title to such Information and property shall remain exclusively in
NSS.
B. Risk of Loss
To assume all risk of loss or damage, reasonable wear and tear
excepted, to such Information and property while in Contractor's or any
Subcontractor's possession or control.
C. Use
To ensure that such Information and property are used solely in the
performance of the Contract.
D. Taxes
To be responsible for payment of all taxes which become due by reason
of Contractor's or any Subcontractor's possession, control or use of such
Information and property, and to comply with all requirements of said laws,
including making payment of any interest or penalties related to or arising from
such taxes.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
E. Encumbrances
To ensure that no lien, encumbrance, pledge or other interest
whatsoever attaches to such Information and property as a result of Contractor's
or any Subcontractor's acts or omissions.
F. Return
Except as may otherwise be provided in this Contract to return such
Information and property to NSS upon completion of all Work or termination of
this Contract.
G. Damages
That in no event will NSS be liable for special, indirect or
consequential damages related to such Information and property or arising from
the use thereof.
ARTICLE 32. HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA
Contractor shall comply with applicable national, state, and local
laws, codes, ordinances, and regulations (including the acquisition of licenses
and permits) in connection with any hazardous material used during Launch
processing. Contractor agrees to provide the right to use and disclose such data
relating to hazardous materials as necessary to comply with this Article.
ARTICLE 33. APPLICABLE LAWS
This Contract shall be interpreted, construed and governed by the laws
of the State of New York, U.S.A., except to the extent that the conflicts of
laws rules of New York would require the application of the laws of another
jurisdiction. The United Nations Convention on the International Sale of Goods
does not apply to this Contract.
ARTICLE 34. NOTIFICATION OF ANOMALY OCCURRENCE
Notwithstanding any other provision in this Contract, NSS authorizes
Contractor to provide notification of a major on-orbit anomaly that has occurred
on the Satellite(s) to: (i) all third-party Boeing satellite owners within a
common satellite class (i.e. 376, 601, 601HP, 702), and (ii) all third-party
Boeing satellite owners of other satellite classes using a common system and/or
sub-system as those are present on the Satellite(s) which are impacted by such
anomaly. In consideration for such authorization, NSS shall receive from
Contractor similar notifications regarding major on-orbit anomalies described
above that have occurred on satellites of other Boeing commercial satellite
owners who have agreed to this clause.
Such notifications will be generic in nature (i.e., no technical
details) and will not directly identify the specific satellite (or satellite
owner) experiencing the anomaly. Contractor shall provide such notification
within one (1) Business Day of Contractor's receipt of written notification of
an anomaly occurrence. Contractor's notification shall be proprietary and shall
be handled in accordance with Article 27 CONFIDENTIALITY. Anomaly notifications
provided by Contractor to NSS may be in any form (oral, written, email, or voice
mail message) and shall be delivered to NSS' NSS-8 Program Manager. If orally
notified, confirmation in writing will be provided within 10 business days of
the oral notification.
The following is an example of a notification as contemplated under this
Article:
'A Boeing Satellite Systems 601 satellite has just experienced a failure of a
satellite control processor. Further details will be forthcoming. The provision
of additional detailed information regarding this anomaly will be provided under
the existing terms of the contract for disclosure of information'
ARTICLE 35. *
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
ARTICLE 36. GENERAL
A. Severability
If any provision of this Contract is declared or found to be illegal,
unenforceable or void, the Parties shall negotiate in good faith to agree upon a
substitute provision that is legal and enforceable and as nearly as possible
consistent with the intentions underlying the original provision. If the
remainder of this Contract is not materially affected by such declaration or
finding and is capable of substantial performance, then the remainder shall be
enforced to the extent permitted by law.
B. Cumulative Rights/Waivers
All rights and remedies conferred hereunder or otherwise shall be
cumulative and may be exercised singly or concurrently. No delay or omission by
either Party to exercise any right or power shall impair such right or power or
be construed to be a waiver thereof. No payment of money by any person or entity
shall be construed as a waiver of any right or power under this Contract. A
waiver by any Party of any of the covenants, conditions or contracts to be
performed by the other or any breach thereof shall not be construed to be a
waiver of any succeeding breach thereof or of any other covenants, conditions or
contracts herein contained. No change, waiver or discharge hereof shall be valid
unless in writing and signed by the Authorized Representative of the Party
against which such change, waiver or discharge is sought to be enforced.
C. Gender/Captions
As used herein, the singular shall include the plural and the plural
may refer only to the singular. The use of any gender shall be applicable to all
genders. The captions contained herein are for purposes of convenience only and
are not a part of this Contract.
D. Relationship of the Parties
It is expressly understood that Contractor, on the one hand, and NSS,
on the other hand, intend by this Contract to establish the relationship of
independent contractors and do not intend to undertake the relationship of
principal and agent or to create a joint venture or partnership between them or
their respective successors in interest. Neither Contractor, on the one hand,
nor NSS, on the other hand, shall have any authority to create or assume in the
name or on behalf of the other Party any obligation, expressed or implied, nor
to act or purport to act as the agent or the legally empowered representative of
the other Party hereto for any purpose whatsoever.
E. Construction
This Contract and the Exhibits and Schedules hereto, have been drafted
jointly by the Parties and in the event of any ambiguity in the language hereof,
there shall be no inference drawn in favor of or against either Party.
F. Including/Time
Whenever the terms "including" or "include" are used in this Contract
in connection with a single item or a list of items within a particular
classification (whether or not the term is followed by the phrase "but not
limited to" or words of similar effect) that reference shall be interpreted to
be illustrative only, and shall not be interpreted as a limitation on, or an
exclusive enumeration of the items within that classification. The dates for
Delivery of Items and dates and times for all other purposes under this Contract
shall be defined in relation to Greenwich Mean Time.
G. Survival
Termination or expiration of this Contract for any reasons shall not
release either Party from any liabilities or obligations set forth in this
Contract which (i) the Parties have expressly agreed shall survive such
termination or expiration, including the obligations in Articles 9, 11, 13, 14,
15, 16, 17, 18, 21, 22, 23, 26, 27 and 28, or (ii) remain to be performed or by
their nature would be intended to be applicable following any such termination
or expiration.
H. Entire Agreement
This Contract: (i) consists of this document and the referenced
Exhibits in Article 2 of this Contract and the Schedules attached thereto; (ii)
constitutes the entire agreement of the Parties with respect to the subject
matter hereof; and (iii) supersedes all prior correspondence, representations,
proposals, negotiations, understandings, and agreements of the Parties, oral or
written, with respect to the subject matter hereof. No addition to, deletion of,
or deviation from the provisions of this Contract shall be binding against NSS
unless in writing and signed by an Authorized Representative of NSS or against
Contractor unless in writing and signed by an Authorized Representative of
Contractor.
EXHIBIT A
Entire Exhibit Redacted pursuant
to U.S. International Traffic in Arms
Regulation (ITAR), 22 CFR
120-130
SPACECRAFT PERFORMANCE SPECIFICATIONS
EXHIBIT B
Entire Exhibit Redacted pursuant
to U.S. International Traffic in Arms
Regulation (ITAR), 22 CFR
120-130
STATEMENT OF WORK
EXHIBIT C
Entire Exhibit Redacted pursuant
to U.S. International Traffic in Arms
Regulation (ITAR), 22 CFR
120-130
PRODUCT ASSURANCE PLAN
EXHIBIT D
Entire Exhibit Redacted pursuant
to U.S. International Traffic in Arms
Regulation (ITAR), 22 CFR
120-130
TEST PLAN
EXHIBIT E
MILESTONE PAYMENT PLAN
NSS-8 Payment Schedule (US$K)
Item Number 1, 2, 5, 6, 7 and 8
- -------------------------------------------------------------------------------------------------
Payment Due Payment
Payment from EDC Milestone $K
- -------------------------------------------------------------------------------------------------
1 * Effective Date of Contract (EDC) *
- -------------------------------------------------------------------------------------------------
2 * Antenna Patterns Complete *
- -------------------------------------------------------------------------------------------------
3 * Complete Preliminary Design Review (PDR) *
- -------------------------------------------------------------------------------------------------
4 * Complete C-Band TWT (First Set of 25) *
- -------------------------------------------------------------------------------------------------
5 * Complete Ku-Band TWT (First Set of 15) *
- -------------------------------------------------------------------------------------------------
6 * Complete Critical Design Review (CDR) *
- -------------------------------------------------------------------------------------------------
7 * Complete De-mate of Bus and payload Structures *
- -------------------------------------------------------------------------------------------------
8 * IOR Contract Amendment Signed *
- -------------------------------------------------------------------------------------------------
9 * Delta System PDR *
- -------------------------------------------------------------------------------------------------
10 * Complete Bus Test *
- -------------------------------------------------------------------------------------------------
11 * Delta System CDR *
- -------------------------------------------------------------------------------------------------
12 * Repeater Equipment Delivered *
- -------------------------------------------------------------------------------------------------
13 * Complete Qual of C-band Feed *
- -------------------------------------------------------------------------------------------------
14 * Complete SCTV *
- -------------------------------------------------------------------------------------------------
15 * Complete Spacecraft Integration *
- -------------------------------------------------------------------------------------------------
16 * Complete Mechanical Environmental Test *
- -------------------------------------------------------------------------------------------------
17 * Satellite FRR Complete *
- -------------------------------------------------------------------------------------------------
18 * Completion of In-Orbit Test (IOT) *
- -------------------------------------------------------------------------------------------------
Spacecraft In-Orbit Incentives (Present Value) *
- -------------------------------------------------------------------------------------------------
Notes to Milestone Payment Schedule
1. Payments are made based upon cost of Items in Paragraph 4.A of the Contract.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
EXHIBIT E - MILESTONE PAYMENT PLAN (CONT'D)
Conditions for Payment. Unless otherwise specified in the Contract:
A. Milestones which call for the completion or delivery to the
Contractor of subcontracted or procured hardware items will be deemed completed
when receiving inspection of the hardware items at the Contractor's plant has
been successfully completed and copies of an acceptance test report and/or other
supporting data, analyzed by the Contractor, have been submitted to NSS.
B. Milestones which call for the completion or delivery of hardware
items manufactured or assembled by the Contractor will be deemed completed when
an acceptance test report and/or other hardware acceptance data has been
submitted to NSS.
C. Milestones which call for the completion of testing at the system
level will be deemed completed when a corresponding test report is submitted to
and concurred with by NSS in conformance with requirements of the Statement of
Work. Test data must also be transferred to NSS in conformance with the
Statement of Work.
D. Milestones related to system reviews (preliminary, critical and
preshipment reviews) will be deemed completed if the purpose and objectives of
the review (as defined in the Statement of Work) have been met, a review report
and action plan have been submitted to and concurred in by NSS and critical
design issues identified in the review have been closed.
E. In the event the Contractor completes any milestone event, as set
forth in the Milestone Payment Plan of this Exhibit E, at any time in advance of
the month in which such event is set forth in said Milestone Payment Plan, the
Contractor shall have the right to submit an invoice for such event, and NSS
shall have the obligation to make such payment, provided that: (1) the
Contractor may not submit in any quarter for amounts which, when added to
amounts previously invoiced, exceed the total cumulative amount shown in the
Milestone Payment Plan from the Effective Date of Contract through that quarter;
and (2) NSS concurs that advanced completion is not detrimental to the program.
F. The approval of milestone payments by NSS, in accordance with the
Milestone Payment Plan of this Exhibit E, shall not affect the Contractor's
overall responsibility to perform all the Work required by the Contract pursuant
to the provisions thereof.
Sea Launch Services Payment Schedule (US$K)
======================================================
Payment Due (Month
or Months Prior to L) Sea Launch
======================================================
L-27 *
------------------------------------------------------
L-26
------------------------------------------------------
L-25
------------------------------------------------------
L-24
------------------------------------------------------
L-23
------------------------------------------------------
L-22
------------------------------------------------------
L-21 *
------------------------------------------------------
L-20
------------------------------------------------------
L-19
------------------------------------------------------
L-18 *
------------------------------------------------------
L-17
------------------------------------------------------
L-16
------------------------------------------------------
L-15 *
------------------------------------------------------
L-14
------------------------------------------------------
L-13
------------------------------------------------------
L-12 *
------------------------------------------------------
L-11
------------------------------------------------------
L-10
------------------------------------------------------
15 February 2003 *
------------------------------------------------------
L-8
------------------------------------------------------
L-7
------------------------------------------------------
L-6 *
------------------------------------------------------
L-5
------------------------------------------------------
L-4
------------------------------------------------------
L-3 *
------------------------------------------------------
L-2
------------------------------------------------------
L-1
------------------------------------------------------
L
------------------------------------------------------
L+30 *
======================================================
Total *
------------------------------------------------------
Table Note:
L= First day of Launch Period, Slot, or the Launch Date, as applicable as of the
date of payment.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment.
EXHIBIT F
Entire exhibit redacted
and filed separately with the Commission
pursuant to a request for confidential treatment.
CRITERIA FOR CONDITIONAL ACCEPTANCE TOTAL CONSTRUCTIVE LOSS
AND ADJUSTMENT OF FIRM FIXED PRICE AND IN ORBIT INCENTIVES
EXHIBIT G
EXPORT LAWS COMPLIANCE PLAN
G.1 Export Licensing and Compliance, Management Resources and Process
During the period of this Contract, the Contractor shall maintain an
Export Compliance Office to support the United States government licensing and
export requirements related to the NSS-8 spacecraft program. The Contractor
shall identify for NSS the title, responsibilities and the location of the unit
of the Office that is responsible for particular export-licensing functions
under this Contract and shall ensure that each such unit of the Office is
staffed with export specialists who will carry out their functions by drawing
upon the technical expertise of the Contractor.
The Contractor's licensing and technical specialists shall be
responsible for preparing, submitting, monitoring status and following up on
processing of all applications that are required for the NSS-8 program under the
International Traffic in Arms Regulations ("ITAR") administered by the Office of
Defense Trade Controls, U.S. Department of State ("ODTC"). The Contractor shall
ensure that such license preparation begins in a timely manner with adequate
lead-time for approval cycles, recognizing that NSS will be required to provide
documents and review draft agreements in a timely manner, and that all license
paperwork and technical documents meet the requirements of the provisions of the
ITAR. The Contractor shall interface with all U.S. government offices that are
involved in the processing and review of ITAR license applications including
ODTC and the Defense Threat Reduction Agency ("DTRA").
Contractor's Export Compliance staff shall with the cooperation of NSS
respond expeditiously to any U.S. government questions or concerns regarding
applications to ODTC under the ITAR or regarding the NSS-8 program with a view
to resolving issues promptly to permit final processing of pending applications.
Contractor's export compliance staff shall also prepare, submit, monitor and
support all administrative paperwork necessary for the mandatory Congressional
notification for the sale of commercial communications satellites to non-U.S.
buyers when such sales exceed a value of $50 million USD.
Within 60 days of the signature of this Contract, the Export Compliance
Office shall prepare and submit to NSS for prior approval an export license
administrative plan that will identify export licensing requirements for the
entire NSS-8 program, from program start to launch and final delivery. This plan
shall show milestones for preparing, seeking and obtaining all required ODTC
authorizations. The purpose of this plan shall be to minimize delay associated
with seeking required authorization for the export of defense articles,
including technical data, and defense services for the NSS 8 program. The Export
Compliance Office will be responsible for updating this plan as and when
circumstances require.
G.2 New Skies Networks Inc. and NSS Access to Program Information
For all purposes relating to the application of the ITAR to the export
from the United States of defense articles, including technical data, and
defense services, Contractor shall treat New Skies Networks Inc. ("NSNI") as a
"United States person" under the ITAR, provided that NSNI maintains its
registration in good standing with ODTC. Contractor shall also treat as "United
States persons" under the ITAR all United States citizens and U.S. permanent
resident aliens who are employees of NSNI or that are consultants or independent
contractors. Accordingly, Contractor shall without prior ODTC authorization
furnish defense articles, including technical data, and defense services
relating to the NSS-8 program to NSNI or to U.S. citizen employees, consultants
and independent contractors of NSNI, provided that such articles or services are
not subject to specific restriction for release to such persons under the terms
and conditions of applicable ODTC export licenses issued to Contractor or NSS
and provided also that NSNI has provided Contractor with appropriate written
assurances that NSNI will not release such articles or services to foreign
persons, as defined by the ITAR, without prior ODTC authorization. For the
avoidance of doubt, from EDC until the date that an export license for the
Spacecraft is obtained, Contractor agrees to treat NSNI, all U.S. citizens and
U.S. permanent resident aliens who are employees of NSNI or that are consultants
or independent contractors of NSNI as U.S. persons under the ITAR.
G.3 NSS Program Licenses
In accordance with the Statement of Work and Spacecraft Performance
Specification herein and with this Exhibit G, Contractor anticipates various
U.S. Government authorizations and licenses will be required to support the
export of technical data and associated defense services during the period of
performance of this Contract. These may include, but may not be limited to, the
following authorizations and licenses for which Contractor will have the
responsibilities set forth in Section G.1 above:
Technical Assistance Agreements
a) Program Services Technical Assistance Agreement (TAA) providing for export
of the technical data and defense services for the full scope of the
development and production Work under this Contract, including daily
technical interactions, design reviews, test data reviews, technical
meetings, initial mission/on-orbit support, and certain deliverable
software.
b) Launch Services TAA providing for export of the technical data and defense
services to all the launch service providers as required in accordance with
this Contract to cover activities related to launch vehicle interface
definition and launch campaign support.
c) Customer Service TAA providing for export of technical data and services
for efforts associated with long-term, on-orbit support of the Spacecraft.
Manufacturing Licensing Agreements (MLAs)
MLAs to authorize the export of ITAR controlled technical data and defense
services to support subcontracts for the manufacture of hardware components for
the Spacecraft by non-U.S. suppliers.
DSP-5 Licenses
a) DSP-5 licenses for the shipment of the Spacecraft and related fuel and
spare parts, as well as any other defense articles required in connection
with launches because of the nature of the launch vehicle or the launch
location.
b) DSP-5 licenses for shipment and presentation of specific data items
associated with launch-related insurance briefings, and related DSP-83s to
be executed by insurance underwriters.
c) DSP-5 licenses for shipment of any satellite control software to NSS ground
control facilities.
d) DSP-5 licenses for shipment of the Dynamic Satellite Simulator software.
e) DSP-5 licenses for the shipment of flight software source code.
f) DSP-5 and other required approvals for encryption keys and technical data
relating to the command encryption software.
DSP-73 Licenses
a) DSP-73 licenses for the temporary import and/or export of launch campaign
support equipment to the launch site including mechanical support equipment
b) DSP-73 licenses for shipment of mission/in-orbit test support equipment to
the relevant non-U.S. sites, including mission control centers and tracking
sites.
DSP-61 Licenses
DSP-61 licenses to authorize the temporary import and re-export of hardware and
data that may be required for the launch vehicle adapter in order to perform a
fit check.
G.4 Alternative Launch Vehicle Licenses
Contractor shall maintain and/or apply for the required export licenses
and agreements related to one alternative non-U.S. launch services provider in a
manner consistent with the schedule requirements of Article 8.D, Option to
Change Launch Services.
G.5 License Process Monitoring
Contractor shall during the performance of this Contract abide by the
course of action and processes as described above and shall make every
reasonable effort to ensure compliance with the procedures outlined in order to
permit compliance with timetables established under this Contract. Contractor
shall seek to have all export license applications processed expeditiously such
that no NSS-8 program milestone is affected by any U.S. Government
administrative processing delay including, in particular, action by ODTC.
Contractor shall keep NSS informed by way of written weekly status reports of
the progress of all export license applications and approvals, including the
status of license applications both within the Contractor's organization and
within the U.S. Government until such time as all necessary export licenses are
obtained.
EXHIBIT H
MAXIMUM TERMINATION LIABILITY
MAXIMUM TERMINATION LIABILITY SCHEDULE
- --------------------------------------------------------------------------------
PERIOD CUMULATIVE PERCENTAGE
(Months after EDC) OF TOTAL FIRM FIXED PRICE
- --------------------------------------------------------------------------------
1 *
- --------------------------------------------------------------------------------
2 *
- --------------------------------------------------------------------------------
3 *
- --------------------------------------------------------------------------------
4 *
- --------------------------------------------------------------------------------
5 *
- --------------------------------------------------------------------------------
6 *
- --------------------------------------------------------------------------------
7 *
- --------------------------------------------------------------------------------
8 *
- --------------------------------------------------------------------------------
9 *
- --------------------------------------------------------------------------------
10 *
- --------------------------------------------------------------------------------
11 *
- --------------------------------------------------------------------------------
12 *
- --------------------------------------------------------------------------------
13 *
- --------------------------------------------------------------------------------
14 *
- --------------------------------------------------------------------------------
15 *
- --------------------------------------------------------------------------------
16 *
- --------------------------------------------------------------------------------
17 *
- --------------------------------------------------------------------------------
18 *
- --------------------------------------------------------------------------------
19 *
- --------------------------------------------------------------------------------
20 *
- --------------------------------------------------------------------------------
21 *
- --------------------------------------------------------------------------------
22 *
- --------------------------------------------------------------------------------
23 *
- --------------------------------------------------------------------------------
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
EXHIBIT J
BILL OF SALE
Bill of Sale [LOGO] BOEING
- ------------------------------------------------------------------------------------------------
Exporter Contract No. Program
Boeing Satellite Systems Int'l Inc. -------------------------------------------
909 N. Sepulveda Boulevard Invoice No. Page No.
El Segundo, CA 90246 91-2046588 XXXXX 1 of 1
- ------------------------------------------------------------------------------------------------
Consign to Shipment No. Date
-------------------------------------------
GLA Code Source Code
TL550C
- ------------------------------------------------------------------------------------------------
Mark For Packing Sheet No.
-------------------------------------------
Packing Details
-------------------------------------------
Shipped via
- ------------------------------------------------------------------------------------------------
Sold To
AWB No./Bill of lading
-------------------------------------------
House AWB No.
- ------------------------------------------------------------------------------------------------
Notify Party Instructions
- ------------------------------------------------------------------------------------------------
County of Origin Terms
United States of America -------------------------------------------
Gross Weight: XXXX KGS
- ------------------------------------------------------------------------------------------------
Item Description Quantity Amount
- ------------------------------------------------------------------------------------------------
Shipment Contains IATA Hazardous Materials
01 Commercial Communications Satellite 1 NO
HTS 8802.80.3000; Net Weights: XXXX kgs
License: XXXXXX, expires 00/00/0000
02 Flight Hardware LOT
HTS 8803.90.3000; Net Weight: XX kgs
License: XXXXXX, expires 00/00/0000
----------
TOTAL VALUE FOR CUSTOMS PURPOSES: $0.00
- ------------------------------------------------------------------------------------------------
THESE COMMODITIES ARE AUTHORIZED BY THE U.S. GOVERNMENT FOR EXPORT ONLY TO
_____________________ FOR USE BY ____________________ REPRESENTATIVES. THEY MAY
NOT BE TRANSFERRED, TRANSSHIPPED, ON A NON-CONTINUOUS VOYAGE, OR OTHERWISE
DISPOSED OF IN ANY OTHER COUNTRY, EITHER IN THEIR ORIGINAL FORM OR AFTER BEING
INCORPORATED INTO OTHER END-ITEMS, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE
U.S. DEPARTMENT OF STATE.
The seller of the above-listed property hereby warrants to the buyer of same,
its successors and assigns that, immediately prior to the delivery of this Bill
of Sale, the seller was the owner of the full, legal and beneficial title to the
property and that the seller has good and lawful right to sell the same, and
that good and marketable title to the property is hereby vested in the buyer
free and clear of all liens, security interests, claims, pledges, encumbrances
and rights of others of any nature; and the seller covenants and agrees with the
buyer, its successors and assigns, that it will warrant and defend such title
forever against all claims and demands of the seller and all other persons
claiming from, through or under the seller.
EXHIBIT K
CERTIFICATE OF PERFORMANCE
[LOGO] BOEING
CERTIFICATE OF CONFORMANCE
Boeing Satellite Systems International, Inc. ("BSSI")
certifies that the goods and commodities delivered to
New Skies Satellites N.V. under Bill of Sale Number
__________ in association with Contract No.
NSS-______________ for NSS-8 Spacecraft and Associated
Equipment and Services, dated ________________, 2001
(the "Contract") comply with the Spacecraft Performance
Specifications set forth in the Contract and all other
applicable BSSI drawings and specifications and that
all goods and commodities delivered hereunder are free
from defects in material and workmanship.
BOEING SATELLITE SYSTEMS
INTERNATIONAL, INC.
By:
-------------------------------------------
Title:
----------------------------------------
Date:
-----------------------------------------
EXHIBIT L
Entire exhibit redacted
and filed separately with the Commission
pursuant to a request
for confidential treatment
*
LAUNCH OF SPACECRAFT
BETWEEN
CONTRACTOR AND SEA LAUNCH
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
EXHIBIT M
* SPACECRAFT BASELINE SPECIFICATIONS
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
Exhibit M
Pricing assumption for NSS-9,
Hybrid Satellite in the *
General assumptions
1. Same size and layout of * dual gridded shaped antennas as NSS-8
2. Similar complement of transponders as NSS-8, see NSS-9 Scroll appended to
this exhibit for specific assumptions.
3. Number of channel filter and interconnection selectivity switches not to
exceed those assumed in NSS-9 Scroll.
4. Spacecraft requirements are within by Boeing 702-bus capability used for
NSS-8. For example, spacecraft design life, environmental, payload power,
thermal and pointing/attitude control does not exceed the capabilities of
the NSS-8 spacecraft.
5. Spacecraft orbital manuever life requirements will be derived based on the
mass budget derived once a preliminary design for NSS-9 is complete.
6. Payload Reliability requirements will be derived once a preliminary design
for NSS-9 is complete.
Payload
Communication Subsystem Performance
1. The general scope of the performance specification is the same as NSS-8
Antenna Beams
The NSS-9 satellite will provide the following beams, the coverage shapes are
provided at the end of this attachment.
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
Antenna Physical Configuration
*
4. Antenna performance consistent with the above geometry.
Transponder configuration
1. * for * C-Band transponders not to exceed * Watt TWTAs
2. * for * Ku-band transponders not to exceed * Watt TWTAs
3. Payload power limited to the capability of the NSS-8 spacecraft. Example
simultaneous operating complement
o * C-Band + * Ku-Band
o * C-Band + * Ku-Band
4. Interconnectivity bounded by the switches assumed in the NSS-9 Scroll
5. Frequency plan bid is provided at the end of this attachment.
6. Payload definition is bounded by the payload scroll provided at the end of
this attachment.
Programmatic
1. Delivery on ground at * months after contract start
2. Delta PDR and CDR are conducted as required.
3. Antenna coverages are defined at NSS-9 EDC + 3months.
4. General scope of work as defined in NSS-8 Statement of Work
5. General test scope as defined in NSS-8 Comprehensive Test Plan, except that
NSS-9 spacecraft will be tested at acceptance levels.
6. NSS-8 Program office and program management team will manage NSS-9 program.
7. * assumed for Launch and Mission Operations.
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
NSS-9 Frequency Plan
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
*
C and Ku Band Antenna Coverages
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment
NSS-9 Unit Scroll
*
* Confidential portion omitted and filed separately with the Commission pursuant
to a request for confidential treatment