Exhibit 10.3c
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Revised by Amendment 7
AMENDMENT NO.7
TO THE AMSC/HUGHES
MSAT SPACECRAFT CONTRACT
This Amendment No. 7 to the MSAT Spacecraft AMSC-S/C-11/90-001 dated 10 December
1990 (the Contract) as amended, is made effective this 2nd day of December
1997 by and between:
AMSC SUBSIDIARY CORPORATION, as assignee of AMERICAN MOBILE SATELLITE
CORPORATION, (hereinafter referred to as "AMSC"), a company incorporated under
the laws of the State of Delaware, having its principle place of business in the
Reston, Virginia, U.S.A.
AND
HUGHES SPACE AND COMMUNICATIONS COMPANY, (hereinafter referred to as
"Contractor" or "HUGHES"), a company organized and existing under the laws of
Delaware with its principal place of business located in El Segundo, California,
USA.
WHEREAS, AMSC and HUGHES have heretofore entered into the Contract for provision
of a satellite and other items therein; and,
WHEREAS, AMSC has decided it will lease the M2 Spacecraft ("Spacecraft" or
"Satellite") to African Continental Telcommunications Ltd. (hereinafter
referred to as "ACTEL" or "Lessee"); and,
WHEREAS, pursuant to AMSC's request, HUGHES will enter into a separate contract
with Telesat Canada (hereinafter referred to as "Telesat" or "Operator"), for
software and procedures so that Telesat, as AMSC's satellite operator, can
invert and roll the Spacecraft, and,
WHEREAS, AMSC and HUGHES have agreed to amend the terms of the Contract to
reflect the impact of AMSC's lease of the Satellite with ACTEL and HUGHES
entering into a separate contract with Telesat; and
WHEREAS, AMSC and HUGHES had previously agreed to modify the Contract with the
approval of a revised MSAT IRD with Atlas and certain Engineering Change
Requests (ECRs), and the Parties now wish to incorporate this IRD and the
following ECRs as an administrative matter: ECRs 456346-58, 456415-65,
456348-75, 456349-76, 456350-77, 456351-97, 456352-98A, into the Common Test
Plan; and TMI has approved the same ECRs to change the MSAT IRD with Atlas into
their Assignment Agreement and to make the same related adjustments in the
Common Technical Specification and Common Test Plan of the TMI/SPAR//HUGHES
Assignment Agreement; and
NOW, THEREFORE, in consideration of the mutual benefit to be derived, the
Parties hereto agree that the Contract is amended as follows:
Revise the Contract terms and conditions by substituting the attached
pages dated November 1997 for the existing pages and adding new pages as
follows:
4, 20, 20A, 39A, 74A, 74B, 74C
Revise the Attachment 2 Technical Specification for Satellite by
substituting the attached pages attached October 1995 for the existing pages as
follows:
Appendix A, pages 9 and 13
Revise the Attachment 4 Test Plan by substituting the attached pages
dated October 1995 for the existing pages and adding new pages as follows:
2-4, 2-5, 4-6, 4-7, 4-7A, 4-8, 5-5, 5-6
A-3, A-11A, A-11B, A-11C, A-14, A-15, A-17A, A-17B, A-20, A-20A C-1,
C-33, C-34, C-35, C-36, C-37, C-45, C-49
For purposes of clarity and traceability, each of the substitute pages above
(except for the Payment Plan,) have been annotated to reflect the deleted text,
shown with a "strike through" () and/or change bar in the right hand margin
(example |); and, the new text, shown by underling (example), italics (example),
a different font (example example) and/or by a change bar in the right margin
(example |). Each page is also designated with "Revised Amendment 7" in the
upper right hand corner.
There is no modification to this Contract except as expressly set forth above.
Revised by Amendment 7
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 7 to the
MSAT Contract AMSC-S/C-11/90-001.
AMSC SUBSIDIARY CORPORATION HUGHES SPACE &
COMMUNICATIONS COMPANY
By: /s/Randy Segal By: /s/Patrice Gray Mitchell
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(Signed) (Signed)
Randy Segal Patrice Gray Mitchell
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(Printed or Typed) (Printed or Typed)
Title: Vice President Title: Manager, Commercial/
International Contracts
Revised by Amendment 7
TERMS AND CONDITIONS REVISIONS
AMENDMENT NO. 7
To
AMSC/HUGHES MSAT CONTRACT
NOVEMBER 1997
Revised by Amendment 7
and made a part of this Contract.
"Contract Price" means the total amount expressed in this Contract to be
payable to the Contractor for the satisfactory performance of the Work, such
Contract Price to include, where applicable, all charges for Worker's
Compensation insurance, charges for insurance, shipping costs and all other
assessments, except only as specifically excluded in Article 4.0.
"Day" means a continuous 24-hour period commencing a 12:00 midnight
(Greenwich Mean Time).
"Designated Launch Site" means the launch facility provided by the Launch
Agency.
"Equipment" means individual assemblies, parts thereof and complete
systems.
"Financing Entity" means an institution or other entity which lends
money or otherwise provides financing to AMSC for payment of amounts due under
this Contract.
"Intentional Ignition" means the deliberate, intentional ignition of the
first stage of any launch vehicle for the purpose of launching the Spacecraft
into orbit.
"Launch Agency" means the organization selected by AMSC to perform launch
services, including furnishing the launch vehicle, launch support, Equipment and
facilities for the purpose of launching the Spacecraft into orbit.
"Properly Operated Satellite" means a Satellite which is being monitored
and commanded in accordance with the written directives and instructions
furnished to AMSC by Contractor in the Recommended Satellite Operating
Procedures and any formal amendments thereto under this Contract or under the
Software Development and License Contract between Hughes and Telesat.
Revised by Amendment 7
Performance Incentive Payments commensurate with the profits
generated by the Spacecraft.
Impact to Incentives due to the Inversion of the Satellite
AMSC shall have Telesat perform the relocation and inversion of
the Satellite. Telesat shall then operate the Satellite in an
inverted position. If the Satellite fails during the inversion
and/or relocation procedures or within six (6) months of
completion of the inversion and relocation procedure provided
that the Satellite is exposed to both the Summer and Winter
solstices ("the Period"), Hughes shall be entitled to payment of
the PIPs, plus interest for each regularly scheduled period from
May 1995 through the 3650th day thereafter. If there is an
anomaly during this Period, it shall be deemed to have been
caused by the Spacecraft inversion and there shall be no
reduction in the PIPs to be paid over the lifetime of the
Satellite, unless AMSC to can prove to Hughes' satisfaction that
it was not caused by the inversion. The issue of whether Hughes
is satisfied with AMSC's claim shall not be subject to dispute or
arbitration. If there is an anomaly on the Satellite after the
Period, the basic contract provisions shall apply and this
Paragraph 7.1(3) shall no longer be applicable.
Extended Life Incentives. Following the THREE THOUSAND SIX
HUNDRED AND FIFTY (3,650) day period in 7.1(2) above, the
Contractor shall receive Extended Life Incentive Payments of TWO
THOUSAND AND SEVENTY-FIVE U.S. DOLLARS (US$2,075.00) plus
interest per day, plus SEVEN HUNDRED AND NINETY-SEVEN CANADIAN
DOLLARS (C$797.00) plus interest per day, subject to the
reductions in accordance with Paragraphs 7.1(2)(c) and 7.1(2)(d).
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7.2 All Performance Incentive Payments made pursuant to this Article
includes interest accrued from the time that the Spacecraft begins earning
Performance Incentives. An Interest Accrual Factor (IAF) shall be applied to
each payment in accordance with the following formula.
(APRn + 1.0) x 60
Fn = + 1
---------------------------------
365
16.6 LIMITATION OF LIABILITY FOR HUGHES' WORK ON THE SPACECRAFT INVERSION
HUGHES MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO AMSC, TELESAT OR ANY OTHER
PERSON OR ENTITY CONCERNING THE SPACECRAFT INVERSION AND RELOCATION OR THE
PERFORMANCE OF THE SATELLITE. AMSC SHALL INDEMNIFY AND HOLD HARMLESS HUGHES FROM
AND AGAINST ANY LOSS, DAMAGE, LIABILITY OR EXPENSE (INCLUDING ATTORNEY'S FEES
AND OTHER EXPENSES OF INVESTIGATING OR DEFENDING CLAIMS) RESULTING FROM (I) ANY
REPRESENTATION MADE BY AMSC TO ANY THIRD PARTY RELATING TO THIS WORK; AND (II)
ANY CLAIMS MADE BY ANY THIRD PARTY RELATING TO THIS WORK.
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Revised by Amendment 7
ARTICLE 42: OTHER CONDITIONS RELATING TO THE INVERSION AND OPERATION OF THE
SATELLITE
42.1 Export Licenses
AMSC shall obtain all necessary USG export licenses for the Satellite
and/or technical data prior to leasing the Satellite to ACTEL and authorizing
Telesat to operate the Satellite. Upon AMSC's request, HUGHES will provide
limited assistance to AMSC in processing such license applications.
42.1 Transfer of Hughes' Proprietary Information
(a) AMSC agrees that the Lessee and the Operator ("Receiving Parties")
shall enter into a written agreement with AMSC ("Agreement") to protect any
Hughes Proprietary Information ("Proprietary Information") which was
provided under this Contract and which AMSC provides to the Lessee or
Operator. The Receiving Parties shall keep Proprietary Information in
confidence and not disclose to any person or entity, any of the Proprietary
Information, except as otherwise provided below. This Agreement shall
require that the Receiving Parties exercise the same degree of care to
guard against unauthorized disclosure or use of such Proprietary
Information as Receiving Parties employ with respect to their own
Proprietary Information of like importance, but in no event, less than a
reasonable degree of care. This Agreement shall also require that the
Receiving Parties make the Proprietary Information available only to those
of their employees or agents having a "need to know" in order to operate or
maintain the Satellite; and further, that each of their employees or agents
shall be advised that they are obligated to protect the Proprietary
Information in a manner consistent with the Agreement.
Revised by Amendment 7
The Receiving Parties shall not be liable for the disclosure or use of
Proprietary Information if the same is:
in or enters the public domain, other than by breach of this Agreement;
known to the Receiving Parties at the time of first receipt, or thereafter
becomes known to the Receiving Parties without similar restrictions from a
source other than Hughes, as evidenced by written records;
developed by the Receiving Parties independent of any disclosure hereunder
as evidenced by written records.
In the event AMSC, the Lessee or Operator of the Satellite is acquired by a
competitor of Hughes, the Parties agree that Hughes would be irreparably harmed
if any competitor of Hughes, as determined by Hughes in its reasonable
discretion, were to acquire access to any of the intellectual property,
Proprietary Information or other technology, data or inventions covered under
the Contract (collectively, the "Intellectual Property"), regardless of whether
such competitor has an ownership interest in AMSC, the Lessee or Operator.
Accordingly, the Parties agree that no competitor of Hughes shall be given
access to any of the Intellectual Property, and that should a competitor obtain
control of AMSC, the Lessee or the Operator or otherwise be an assignee or
transferee of AMSC, the Lessee or the Operator, Hughes may take any and all
reasonable steps to safeguard and protect its Intellectual Property.
Notwithstanding any provisions of the Contract requiring arbitration, the
foregoing agreement may be enforced by Hughes by entry of injunctive relief, in
addition to all other remedies available to Hughes under the Contract,
applicable law or otherwise.
Revised by Amendment 7
42.2 A condition precedent to the effectiveness of this Amendment 7 shall
be a binding agreement between AMSC and ACTEL for the lease of the Satellite and
a binding agreement between AMSC and Telesat for the inversion, relocation and
operation of the Satellite.