*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4)
200.83 and 240.24b-2
AMENDED AND RESTATED AGREEMENT
(No. 030/KON/PSN-IX/95)
Between
TITAN INFORMATION SYSTEMS CORPORATION
And
PT. PASIFIK SATELIT NUSANTARA
And
TEDCO GROUP LIMITED
For
"EQUIPMENT PURCHASE"
TABLE OF CONTENTS
RECITALS
1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Rights and Obligations of Titan. . . . . . . . . . . . . . . . . . . . . 6
3. Rights and Obligations of Tedco and PSN. . . . . . . . . . . . . . . . . 8
4. Purchase and Sale of Products. . . . . . . . . . . . . . . . . . . . . . 9
5. Delivery and Production Schedule . . . . . . . . . . . . . . . . . . . . 13
6. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7. Delivery; Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8. Inspection, Acceptance and Rejection . . . . . . . . . . . . . . . . . . 18
9. Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10. Exclusivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 22
12. Additional Representations and Warranties of PSN . . . . . . . . . . . . 23
13. Additional Representation and Warranty of Titan. . . . . . . . . . . . . 24
14. Additional Representations and Warranties of Tedco . . . . . . . . . . . 25
15. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
16. Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 29
18. Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
19. Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . 31
20. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
21. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
22. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
23. Settlement of Disputes; Arbitration. . . . . . . . . . . . . . . . . . . 37
24. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
25. Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
26. No Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
i
TABLE OF CONTENTS
ATTACHMENTS:
1. Schedule 1.8(a): HUB Key Elements
2. Schedule 1.8(b): NCS Key Elements
3. Schedule 2.1(a): Technical Requirements
4. Schedule 2.1(b): On-Site Guidelines
5. Schedule 2.1(c): RTS Master Milestones Schedule
6. Schedule 4.3(a): Acceptance (Factory) Test Criteria
7. Schedule 4.3(b): Final Acceptance Test Criteria
8. Schedule 5(a): Delivery Schedule
9. Schedule 10.2: List of Target Countries
10. Schedule 12.2: Satellite System Specifications (To Be Provided)
ii
EQUIPMENT PURCHASE AGREEMENT
This Amended and Restated Equipment Purchase Agreement (the "Agreement")
is made and entered into this 17 day of September, 1996, by and between
TITAN INFORMATION SYSTEMS CORPORATION, a Delaware corporation with a
principal place of business at 3033 Science Park Road, San Diego,
California 92121 ("Titan");
PT. PASIFIK SATELIT NUSANTARA, an Indonesian corporation with a principal
place of business at Sentra Mulia, Jalan H.R. Rasuna Said, Kav. X6 No. 8,
Jakarta 12940 Indonesia ("PSN"); and
TEDCO GROUP LIMITED, a Singaporean corporation with a principal place of
business at Takashimaya Building, Tower A, Floor 23, NG EE AN, Orchard Road,
Singapore ("Tedco").
RECITALS
WHEREAS, Titan and PSN have signed an Equipment Purchase Agreement dated
as of September 13, 1995 (the "Original Agreement"), pursuant to which PSN
agreed to purchase from Titan and Titan agreed to sell to PSN the Rural
Terminals (as defined), the HUBs (as defined) and the NCS (as defined), each
including their Key Elements (as defined) (the "Key Equipment") for use in a
low cost rural telephone system (the "RTS") and to provide certain related
services, pursuant to the terms and conditions set forth therein:
WHEREAS, Tedco and PSN desire that Tedco assist PSN in developing a low
cost RTS for deployment throughout Indonesia and other regions;
WHEREAS, Tedco and PSN desire that Tedco should undertake certain
responsibilities with respect to development of the RTS, including assisting
in the financing for the development of the RTS and in purchasing certain
equipment necessary to its operation;
WHEREAS, Tedco and PSN desire to divide purchasing responsibility for
the Key Equipment such that PSN will purchase the HUBs and the NCS and Tedco
will purchase the Rural Terminals;
WHEREAS, PSN desires to purchase from Titan and Titan desires to sell to
PSN the HUBs and the NCS, each including their Key Elements (as defined)
(collectively, the HUBs and the NCS, each including their Key Elements are
referred to herein as the "Regional Equipment");
1
WHEREAS, Tedco desires to purchase from Titan and Titan desires to sell
to Tedco the Rural Terminals, including its Key Elements (as defined);
WHEREAS, Tedco, PSN and Titan desire that PSN transfer certain of its
rights and obligations under the Original Agreement to Tedco;
WHEREAS, the parties to the Original Agreement now desire to amend and
restate the Original Agreement so that Tedco can be made a party thereto and
become subject to the provisions thereof and so that the responsibilities of
the parties can divided as set forth herein:
NOW, THEREFORE, the parties hereto agree to amend and restate the
Original Agreement as follows:
2
1. CERTAIN DEFINITIONS
The following terms shall have the following meanings in this Agreement:
1.1 "AFFILIATE," shall mean with respect to a Person, any other Person
that controls, or is controlled by, or is under common control
with, such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by"
and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, or by agreement or otherwise.
1.2 "BURST MODEMS" shall mean modems located at the HUBs and the NCS
which will be used in conjunction with the DAMA Network Control
Hardware and the DAMA Network Control Software to provide control
of voice, fax and data transmissions originating from Rural
Terminals and accessing the RTS.
1.3 "COMMUNICATION MODEMS" shall mean modems located at the Rural
Terminals and HUBs and used in conjunction with the DAMA Network
Control Hardware and the DAMA Network Control Software to complete
voice, fax and data transmissions accessing the RTS.
1.4 "DAMA NETWORK CONTROL HARDWARE" shall mean the "demand assigned
multiple access" hardware used in conjunction with the DAMA Network
Control Software for controlling frequency assignments for voice,
fax and data transmissions in the RTS network.
1.5 "DAMA NETWORK CONTROL SOFTWARE" shall mean the software used in
conjunction with the DAMA Network Control Hardware for controlling
frequency assignments for voice, fax and data transmissions in the
RTS network.
1.6 "FINAL ACCEPTANCE TEST CRITERIA" shall mean, as to any product,
the test criteria agreed to by the parties as set forth on
Schedule 4.3(b) attached hereto.
1.7 "HUB(s)" shall mean PSTN Gateway Earth Stations and all of the Key
Elements of such HUB (as set forth on Schedule 1.8(a)), which will
be located at multiple locations throughout Indonesia in order to
receive voice, fax and data transmissions sent over the RTS network.
3
1.8 "KEY ELEMENTS" shall mean the key elements of the HUBs and the
NCS as set forth on Schedules 1.8(a) and 1.8(b) attached hereto,
respectively.
1.9 "KEY EQUIPMENT" shall mean the key equipment for the RTS: (i) the
Rural Terminals, (ii) the HUBS (including any and all Key
Elements listed on Schedule 1.8(a)), and (iii) the NCS (including
any and all Key Elements listed on Schedule 1.8(b)).
1.10 "NCS" shall mean the dedicated network control station and all of
the Key Elements of such NCS as set forth on Schedule 1.8(b),
which NCS may be located at one of the HUBs, as determined by
PSN, and which shall control frequency assignments for voice,
fax, and data transmissions in the RTS network.
1.11 "PALAPA C1 AND C2" shall mean those certain satellites, part of
the Palapa satellite system, operating from the 113 degrees E.L.
orbital location.
1.12 "PERSON" shall mean an individual, partnership, association,
joint venture, corporation, trust or unincorporated organization,
a government or any department, agency or political subdivision
thereof or other entity.
1.13 "PSN" shall mean P.T. Pasifik Satelit Nusantara, an Indonesian
corporation.
1.14 "PSTN" shall mean the Indonesian public switched telephone
network.
1.15 "PSTN GATEWAY EARTH STATION" shall mean an earth terminal with
connectivity to the PSTN.
1.16 "REGIONAL EQUIPMENT" shall mean certain equipment for the RTS:
(i) the HUBs (including any and all Key Elements listed on
Schedule 1.8(a)), and (ii) the NCS (including any and all Key
Elements listed on Schedule 1.8(b)).
1.17 "RTS" shall mean the rural telephone system which will be
deployed throughout Indonesia and other regions within the
extended C-Band coverage area of the Palapa C1 and C2 in order to
provide modern telephone services to communities which are not
currently connected to the PSTN, or for other applications which
require low cost voice, fax and data communications within such
regions.
1.18 "RURAL TERMINALS" shall mean certain very small, low cost earth
stations to be placed at numerous locations throughout Indonesia,
which shall consist of (i) a 1.2 meter (diameter) satellite dish,
(ii)
4
an outdoor electronics unit, and (iii) a telephone unit handset
and separate monitoring display, and which shall access the
Palapa C1 and C2 satellites and provide connectivity for voice,
fax and data transmissions to HUBs.
1.19 "TEDCO" shall mean Tedco Group Limited, a Singaporean corporation.
1.20 "TITAN" shall mean Titan Information Systems Corporation, a
Delaware corporation.
5
2. RIGHTS AND OBLIGATIONS OF TITAN.
2.1 STATEMENT OF WORK.
Subject to the provisions of this Agreement, Titan shall provide
certain hardware, software, documentation, installation, testing,
in-country training and other related services as referenced
herein. The technical requirements for the hardware and software
provided hereunder are attached hereto as Schedule 2.1(a). Titan
personnel will be responsible for the installation and testing of
the Key Equipment required for the Final Acceptance Tests (as
defined) in Indonesia. On-site training ("on-the-job training")
of Tedco and/or PSN personnel will be provided by Titan in
conjunction with such installation and testing. In addition to
the foregoing, Titan personnel shall be available to support
Tedco and PSN with regard to full implementation of the RTS on an
on-call, cost reimbursement basis, pursuant to the On-Site
Guidelines attached hereto as Schedule 2.1(b).
2.2 SPARE PARTS AND TEST EQUIPMENT.
Within 30 days from the execution of this Agreement, Titan will
provide Tedco and PSN with a list of recommended spare parts and
test equipment for the Key Equipment, which list shall include
pricing and delivery information. Titan will make available Titan
proprietary spare parts for the term of this Agreement.
Additionally, Titan agrees that if Tedco elects to designate and
use some of the early delivered Rural Terminals (that is
terminals delivered within the first 12 months) for spares. Titan
will refurbish up to [...***...]. To qualify for this no cost
refurbishment, the Rural Terminals must be complete and show no
signs of abuse, damage, alterations, or misuse. Before shipment
to Titan's factory in San Diego, Tedco and PSN must supply Titan
with written notice specifying in reasonable detail, the
condition of each returned Rural Terminal. Within thirty (30)
days after its receipt of such notice, Titan will provide
disposition instructions. [...***...] Rural Terminals must be
returned for refurbishment within a [...***...] from the date of
delivery, as set forth in Section 7 of this Agreement.
* Confidential Treatment Requested
6
2.3 RTS MASTER MILESTONE SCHEDULE.
An RTS Master Milestone Schedule describing the timing of
events leading up to production delivery is attached hereto as
Schedule 2.1(c).
7
3. RIGHTS AND OBLIGATIONS OF TEDCO AND PSN.
3.1 PURCHASE AND SHIPPING OBLIGATIONS.
PSN shall purchase the Regional Equipment (including their Key
Elements) required for the RTS from Titan pursuant to the terms and
subject to the conditions of this Agreement. The Regional Equipment
together with its Key Elements are sometimes referred to herein as
the "Regional Equipment Products." Tedco shall purchase the Rural
Terminals required for the RTS from Titan pursuant to the terms and
subject to the conditions of this Agreement. The Regional
Equipment, their Key Equipment, and the Rural Terminals are
sometimes collectively referred to herein as the "Products."
[...***...]
3.2 MANAGEMENT AND OTHER SERVICES.
PSN and Tedco will be responsible for providing, or having the end
users provide, any and all operating, management and other services
with respect to the RTS, other than those services specifically
required to be performed by Titan pursuant to the Titan SOW,
including, but not limited to: (a) provision of the physical
facilit(y)(ies) in which the Key Equipment is to be installed (the
"Facilities"); (b) provision of earth station hardware (including
but not limited to antenna and RF equipment) as required to support
the Key Equipment at the HUBs; (c) provision of power and civil
works to the Facilities; (d) installation and testing in Indonesia
of any and all Products provided pursuant to this Agreement; and
(e) maintenance, operation and repair of all Products provided
pursuant to this Agreement, except as otherwise set forth in
Section 9.
* Confidential Treatment Requested
8
4. PURCHASE AND SALE OF PRODUCTS.
Tedco and PSN will purchase from Titan any and all Products
required for the RTS. If Tedco or PSN makes any purchases of any
Products required for the RTS, such purchases shall be made from
Titan.
4.1 INITIAL ORDER.
Subject to the provisions of Section 4.2, Titan will design,
manufacture, or have manufactured, and deliver to Tedco (with
respect to the Rural Terminals) and PSN (with respect to the
Regional Equipment) all at such locations in Indonesia as shall
be designated by PSN, an initial order of [...***...]. Subject to
the provisions of Section 5, delivery of the Initial Order shall
be made in the manner set forth, as appropriate, on Schedule
5(a). The aggregate purchase price payable by PSN to Titan for
the Regional Equipment contained in the Initial Order shall be as
follows:
[...***...]
The aggregate purchase price payable by Tedco to Titan for the
Rural Terminals contained in the Initial Order shall be as follows:
* Confidential Treatment Requested
9
[...***...]
Payment for the Initial Order shall be made by PSN (with respect to
the Regional Equipment) and Tedco (with respect to the Rural
Terminals) to Titan in accordance with Sections 6 and 7 of this
Agreement.
4.2 FOLLOW-ON ORDERS.
Tedco and PSN, as applicable, may order additional quantities of Rural
Terminals, HUBs and NCSs [...***...]
4.3 ACCEPTANCE TESTS.
Testing of the Key Equipment shall be done in two parts. First, Titan
will conduct factory tests at its San Diego, California plant to
demonstrate and validate the satisfactory performance of the Key
Equipment (the "Acceptance Test"). During the Acceptance Test, the Key
Equipment shall be required to meet the Acceptance Test Criteria
attached hereto as Schedule 4.3(a) and (b) which can be tested without
requiring access to the operational extended C-Band frequencies of
Palapa C1 or C2. Representatives of Tedco and PSN shall be afforded an
opportunity by Titan to witness the Acceptance Test. Upon
certification by Titan to Tedco and PSN of the successful completion
of the Acceptance Test, but in no event later than September 20, 1996,
Titan will deliver five (5) Rural Terminals, one (1) HUB and one (1)
NCS (the "Test Equipment") to be used in acceptance tests to be
conducted at a location (or locations) in Indonesia mutually agreeable
to all of the parties (the "Test Location(s)") in order to validate
and demonstrate the satisfactory performance of the RTS (the "Final
Acceptance Test"). Tedco shall ensure that the Test Equipment will be
delivered to the Test Locations and that all Test Equipment shall have
arrived at the proper Test locations no
* Confidential Treatment Requested
10
later than September 20, 1996. PSN and Titan shall assure that all
physical facilities, earth station hardware for HUBs and power and
civil works have been prepared at the Test Locations no later than
September 20, 1996. PSN shall assist Titan with the installation and
testing of the Test Equipment such that RTS performance testing (in
preparation for the Final Acceptance Test) may begin on or before
September 20, 1996 at all Test Locations. Titan will provide at least
30 days advance notice of the planned commencement of the Final
Acceptance Test to PSN and Tedco to afford representatives of PSN and
Tedco an opportunity to witness the Final Acceptance Test. During the
Final Acceptance Test, the Key Equipment shall be required to meet the
Final Acceptance Test Criteria attached hereto as Schedule 4.3(b) (the
"Successful Testing"). Any changes to the Key Equipment that shall be
required to meet the Final Acceptance Criteria shall be done by Titan
at Titan's expense. The Successful Testing of the Key Equipment shall
be deemed to have occurred upon delivery of conditional certification
by Titan and a PSN authorized representative to Tedco of such
Successful Testing (the "Certification"). Within sixty (60) days Titan
shall successfully prove the Pseudo-Mesh capabilities of the RTS by
operating with multiple hubs, at which time the conditional
Certification automatically becomes effective. Delivery of the Initial
Order shall commence within two months after the conditional
Certification.
4.4 CURE PERIOD.
If Titan and a PSN authorized representative agree that the Key
Equipment has failed to meet the Final Acceptance Test Criteria, Tedco
and PSN will jointly notify Titan of such Failure in writing and Titan
will be granted sixty (60) days to correct the Key Equipment (the
"Cure Period"). Following the Cure Period, the Key Equipment shall
again be required to meet the Final Acceptance Test Criteria attached
hereto as Schedule 4.3(b). The Key Equipment shall be deemed to have
had a Successful Testing pursuant to the After Cure Test upon delivery
of the Certification by Titan and a PSN authorized representative to
Tedco of such Successful Testing.
11
4.5 TESTING DISPUTES.
If, at any time, any of the parties hereto disagree as to any issue
pursuant to this Agreement including, without limitation, whether a
Successful Testing has occurred, such disagreement shall be resolved
by such parties in accordance with the provisions of Section 23
hereof.
4.6 FAILURE OF FINAL ACCEPTANCE TEST.
If, following the After Cure Test, both Titan and a PSN authorized
representative agree that the Key Equipment has failed to meet the
Final Acceptance Test Criteria, such failure shall be considered a
Breach of this Agreement (as defined herein), and thereafter Tedco and
PSN may, in their collective discretion, pursuant to the terms and
subject to the conditions of Section 16, jointly terminate this
Agreement.
12
5. DELIVERY AND PRODUCTION SCHEDULE.
Upon delivery of Certification of the Final Acceptance Testing,
production and delivery of the Initial Order shall commence as set
forth on Schedule 5(a) attached hereto the ("Delivery Schedule").
Monthly delivery quantities may be increased or decreased with no
increase in unit price, on mutual agreement of the parties and with
four months advance notice.
13
6. PAYMENTS.
6.1 ADVANCE PAYMENT.
Upon execution of the Original Agreement, PSN has paid Titan
[...***...] to be delivered pursuant to this Agreement (the
"Advance Payment"). The Advance Payment shall be held by Titan
and shall be applicable against the last Rural Terminals TO BE
PURCHASED BY TEDCO, to be delivered as part of the Initial
Order pursuant to Section 4.1 of this Agreement. Remaining
payments for the Products to be delivered pursuant to this
Agreement shall be made in U.S. Dollars, as set forth in
Sections 6.2 and 6.3 below with respect to Tedco and PSN
respectively. In the event that (a) Titan fails to deliver the
Certification required by Section 4.3, and (b) Tedco and PSN
terminate this Agreement in the manner required by Section 16,
Titan will return the Advance Payment to Tedco within (90) days
of such termination.
6.2 PSN LETTERS OF CREDIT.
(a) INITIAL PSN LETTER OF CREDIT.
No more than 10 days after the successful completion of
this Amended and Restated Agreement, PSN shall post an
irrevocable letter of credit in U.S. Dollars in the amount
of [...***...] in favor of Titan with a U.S. chartered
bank mutually agreeable to each of Titan and PSN upon
terms mutually agreeable to each Titan and PSN (the
"Initial PSN Letter of Credit"). The Initial PSN Letter
of Credit shall be in an amount necessary to pay for the
[...***...] scheduled for delivery during the same period
of delivery as the initial [...***...] (the "Primary
Delivery Period"). The Initial PSN Letter of Credit will
allow Titan to draw-down, at sight, such Initial PSN
Letter of Credit upon written notice by Titan to such bank
that Titan has shipped any Products to PSN in an amount
equal to the sum of (i) the product of [...***...]
* Confidential Treatment Requested
14
(b) SECOND PSN LETTER OF CREDIT
Ninety days in advance of the agreed upon delivery date of
the remaining HUBs to be produced by Titan and delivered
from Titan to PSN pursuant to this Agreement, PSN shall post
a second irrevocable letter of credit in U.S. Dollars in the
amount of [...***...] in favor of Titan with a U.S. chartered
bank mutually agreeable to each of Titan and PSN upon terms
mutually agreeable to each of Titan and PSN (the "Second PSN
Letter of Credit," and together with the Initial PSN Letter
of Credit, the "PSN Letters of Credit"). The Second PSN
Letter of Credit shall be in an amount necessary to pay for
Regional Equipment (including their Key Elements) scheduled
for delivery after the Primary Delivery Period. The Second
PSN Letter of Credit will allow Titan to draw down, at
sight, such Second PSN LETTER of Credit upon written notice
by Titan to such bank that Titan has shipped any Products to
PSN in an amount equal to the product of [...***...]
6.3 TEDCO LETTERS OF CREDIT.
(a) FIRST TEDCO LETTER OF CREDIT
No more than 10 days after the execution of this Amended
and Restated Agreement, Tedco shall post an irrevocable
letter of credit in U.S. Dollars in the amount of
[...***...] in favor of Titan confirmed with a U.S.
chartered bank mutually agreeable to each of Titan and
Tedco upon terms mutually agreeable to Titan and Tedco
(the "First Tedco Letter of Credit"). The First Tedco
Letter of Credit shall be used to pay for the initial
[...***...] Rural Terminals being purchased hereunder by
Tedco. The First Tedco Letter of Credit shall allow Titan
to draw down, at sight, such First Tedco Irrevocable
Letter of Credit upon written notice by Titan to such bank
that Titan has shipped a Rural Terminal to Tedco and/or
PSN in an amount equal to the product of [...***...]
* Confidential Treatment Requested
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(b) SECOND TEDCO LETTER OF CREDIT.
Upon written notice by Titan to Tedco of the production and
imminent delivery of the 800th Rural Terminal. Tedco shall post
a second irrevocable letter of credit in U.S. Dollars in the
amount of [...***...] in favor of Titan confirmed with a U.S.
chartered bank mutually agreeable to each of Titan and Tedco
upon terms mutually agreeable to Titan and Tedco (the "Second
Tedco Letter of Credit" and together with the First Tedco
Letter of Credit and to PSN Letters of Credit, the "Letters of
Credit"). The Second Tedco Letter of Credit shall be in the
amount necessary to pay for the remaining Rural Terminals being
purchased hereunder by Tedco, MINUS an amount equal to the
Advanced Payment paid to Titian by PSN upon execution of the
Original Agreement. The Second Tedco Letter of Credit shall
allow Titan to draw down, at sight, such Second Tedco Letter of
Credit upon written notice by Titan to such bank that Titan has
shipped such a Rural Terminal to Tedco in an amount equal to
the product of [...***...] (b) the number of Rural Terminals
referenced in the written notice to the bank as having been
shipped.
* Confidential Treatment Requested
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7. DELIVERY; TITLE.
The prices for any and all Products sold pursuant to this Agreement and
set forth herein shall include seaworthy export packing and shall be
[...***...] (such that PSN (with respect to Regional Equipment) and Tedco
(with respect to Rural Terminals) shall take delivery of any Product once
such Product is loaded onto a truck for shipment). [...***...] shall be
responsible for delivery of all Products from Titan's plant in San Diego,
California to its desired location in Indonesia or elsewhere. Title and
risk of loss to the Products shall remain with Titan until PSN and/or
Tedco takes possession of the Products [...***...] thereafter title and
risk of loss to the Products will be with PSN and/or Tedco. [...***...]
shall be responsible for any and all shipping charges, non-United States
taxes, and non-United States customs duties related to the Products
hereto (including without limitation all import taxes and duties). Titan
shall be responsible for any United States taxes and customs duties on
the Products to be delivered hereunder (including without limitation
export taxes and duties).
* Confidential Treatment Requested
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8. INSPECTION, ACCEPTANCE AND REJECTION.
All Products under this Agreement will be subject to inspection and
acceptance after delivery. If PSN (with respect to Regional Equipment) or
Tedco (with respect to Rural Terminals) believes that a Product is
defective in material, workmanship or design and Tedco and/or PSN, as
applicable, desires to reject such Product. Tedco and PSN must jointly
provide Titan with a written notice specifying in reasonable detail the
reasons for such rejection. If such a specific written rejection is not
received within thirty (30) days of receipt of a Product at its ultimate
delivery location in Indonesia by PSN or Tedco, as applicable, such Product
shall be deemed to be accepted. If within thirty (30) days after its
receipt of such notice, Titan has not provided Tedco and PSN with
reasonable disposition instructions, Tedco and/or PSN, as applicable, may
at its option continue to hold such Product, or return such Product to
Titan, shipping charges prepaid by PSN or Tedco, as applicable, for review
by Titan. Titan will repair and return any such Product to PSN, shipping
charges prepaid by Titan, after completing its review and any necessary
repairs.
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9. WARRANTY.
With respect to any Product furnished hereunder by Titan to Tedco and/or
PSN, for a period terminating on the earlier of [...***...] from the date
of delivery as set forth in Section 7 of this Agreement, or
[...***...] from the commencement of installation of such Product at its
ultimate delivery location in Indonesia, Titan warrants that such Product
will be free from defects in material and workmanship. Notwithstanding
the foregoing, Titan warrants that the DAMA Network Control Software
shall be free from program defects for a period terminating [...***...]
after installation of such DAMA Network Control Software at the NCS;
PROVIDED, HOWEVER, that in no event shall this warranty terminate with
respect to DAMA Network Control Software less than the earlier of
[...***...] from the date of delivery of the last HUB as set forth in
Section 7 of this Agreement, or [...***...] from the commencement of
installation of the last HUB to be delivered pursuant to the terms of
this Agreement. In the event that PSN (with respect to the Regional
Equipment) or Tedco (with respect to Rural Terminals) believes that a
Product does not conform to such warranty, Tedco and PSN must jointly
supply Titan with a written notice specifying in reasonable detail the
reasons that the Product does not conform to such warranty. Within 30
days after its receipt of such notice, Titan will either (a) advise
designated employees of Tedco and/or PSN, as applicable, in Indonesia as
to the proper method of on-site repair for such Product using replacement
parts provided by Titan, or (b) request that PSN or Tedco, as applicable,
return such Product to Titan's San Diego, California plant, at Titan's
expense, for correction or replacement as Titan may elect. This warranty
shall not apply to any Product that has been abused, damaged, altered or
misused or that is defective for causes external to the Product and not
caused by Titan. TITAN MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF
ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTENT, ACCURACY,
SUFFICIENCY OR ADEQUACY OF PRODUCTS SOLD UNDER THIS AGREEMENT, INCLUDING
ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE GOODS ARE MERCHANTABLE OR FIT
FOR A PARTICULAR PURPOSE.
* Confidential Treatment Requested
19
10. EXCLUSIVITY.
The parties acknowledge and agree that the Key Equipment provided by Titan
for use in the RTS is highly technical in nature and that the
implementation of the RTS is the first of its kind. As such, in order to
advance the technological integrity of the Key Equipment, and subject to
the following provisions of this Section 10, the parties hereto agree as
follows:
10.1 INDONESIA.
With respect to the purchase and sale of the Key Equipment for use
in Indonesia, for a period of [...***...] commencing upon the
execution of this Amended and Restated Agreement, (a) Tedco and PSN
agree that they will (i) purchase all requirements of Key Equipment
for the RTS, or any similar or related equipment required by the RTS
to be used by PSN or Tedco, from Titan and (ii) will designate Titan
as the sole approved vendor for all such equipment, and (b) Titan
agrees to sell the Key Equipment solely and exclusively to Tedco and
PSN for use by Tedco and PSN in the development and operation of the
RTS.
10.2 TARGET COUNTRIES.
With respect to certain countries within the extended footprint of
the Palapa C1 and C2 and set forth on Schedule 10.2 of this
Agreement (the "Target Countries"), Titan, Tedco and PSN or any
Affiliate of Titan, PSN or Tedco (which Affiliate must be mutually
consented to in writing by all of the parties), shall [...***...]
Titan (or the agreed upon Affiliate of Titan) will receive, at no
cost, [...***...] The remaining [...***...] will be divided among
Tedco (or the agreed upon Affiliate of Tedco), PSN (or the agreed
upon Affiliate of Tedco) and such other entities as may be mutually
agreed upon by each of Titan, Tedco and PSN. With respect to each
Target Country, for a period of [...***...] commencing upon the
execution of this Agreement, (i) Titan will sell the Key
* Confidential Treatment Requested
20
Equipment in such Target Country solely and exclusively through the
[...***...] (ii) the [...***...] will only sell Key Equipment or
other similar or related equipment produced by Titan, and (iii)
PSN will make available at least [...***...] for use by RTS-type
ventures in Indonesia and such Target Countries. With respect to
each Rural Terminal sold through the [...***...] in any Target
Country, (i) the first [...***...] of the price of such Rural
Terminal shall be remitted by the [...***...] directly to Titan,
and (ii) if the sale price of such Rural Terminal exceeds
[...***...], any payment amounts in excess of [...***...] shall
be divided equally [...***...]. For example, if Rural Terminals
are sold in a Target Country for [...***...] of the sale price
for such Rural Terminal shall be remitted directly to Titan, and
the remaining [...***...]
10.3 TERMINATION.
This Section 10 shall terminate September 17, 1999, unless extended by
the mutual agreement of the parties, which agreement shall be
documented in a writing satisfactory to both of the parties.
* Confidential Treatment Requested
21
11. REPRESENTATIONS AND WARRANTIES.
Titan, Tedco and PSN each, except as expressly indicated herein, represent
and warrant to, and agree with the other that:
11.1 AUTHORITY; NO BREACH.
It has the right, power and authority to enter into, and perform its
obligations under, this Agreement. Subject to the terms and conditions
of any authorization or consent required from any governmental
authority (including, without limitation, the governments of the
United States and Indonesia) this Agreement is binding upon, and
enforceable against it. The execution, delivery and performance of
this Agreement shall not result in the breach or non-performance of
any agreements it has with third parties. It has complied, in all
material respects, with all existing Laws applicable to, and has no
knowledge of any Law which would be violated by, this Agreement or the
transactions contemplated hereby. As used in this Agreement, "Law(s")
mean all governmental (whether international, national, municipal, or
otherwise) statutes, laws, rules, regulations, ordinances, codes,
directives and orders.
11.2 CORPORATE ACTION.
It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement, and this
Agreement constitutes a legal, valid and binding obligation,
enforceable upon itself in accordance with its terms.
11.3 NO BROKER.
It does not know of any broker, finder or intermediary involved in
connection with the negotiations and discussions incident to the
execution of this Agreement, or of any broker, finder or intermediary
who might be entitled to a fee or commission upon the consummation of
the transactions contemplated by this Agreement.
22
12. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF PSN
12.1 GOVERNMENTAL REGULATIONS.
PSN has or shall use its reasonable best efforts to obtain and
maintain, or cause to be maintained, in all material respects, all
applicable international, national and municipal authorizations or
permissions (the "Authorizations") necessary to develop and operate
the RTS and to comply, or cause compliance, with all Laws regarding
the implementation and operation thereof.
12.2 SATELLITE SYSTEM PERFORMANCE.
The technical performance and characteristics of the Palapa C1 and C2
extended C-Band transponders designated for use with the RTS shall
comply, in all material respects, with the satellite system
specifications provided by PSN to Titan and attached hereto as
Schedule 12.2.
23
13. ADDITIONAL REPRESENTATION AND WARRANTY OF TITAN
13.1 GOVERNMENTAL REGULATIONS.
Titan has or shall use its reasonable best efforts to obtain and
maintain, in all material respects, all applicable Authorizations to
develop, manufacture, or have manufactured, construct, test, implement
and deliver the Products hereunder.
24
14. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF TEDCO
14.1 GOVERNMENTAL REGULATIONS
Tedco has or shall use its reasonable efforts to obtain and maintain,
or cause to be maintained, in all material respects, all applicable
Authorizations necessary to develop and operate the RTS and to comply,
or cause compliance, with all Laws regarding the implementation and
operation thereof.
25
15. INDEMNIFICATION
15.1 PSN'S OBLIGATIONS.
PSN shall indemnify and hold Titan and its Affiliates and their
respective directors, officers and employees ("Titan Indemnified
Part(y)(ies)") and Tedco and its Affiliates and their respective
directors, officers and employees ("Tedco Indemnified Part(y)(ies)"
harmless from and against any and all costs, expenses and/or
liabilities, incurred by the Titan Indemnified Part(y)(ies) or the
Tedco Indemnified Part(y)(ies) (including, but not limited to, (i)
costs of investigation and defense, including without limitation court
costs and reasonable attorneys and other third party fees and (ii) to
the extent permitted by Law, any fines, penalties and forfeitures in
connection with any proceedings against a Titan or Tedco Indemnified
Party) caused by (a) any willful or intentional Breach of this
Agreement by PSN; (b) the infringement by PSN or any Affiliate on
rights protected under the patent, trademark, servicemark, trade
secret or copyright laws of the United States or any state thereof or
of any other governmental entity or body outside the United States as
produced and/or manufactured; or (c) the retention and/or use by PSN
of any vendor or supplier to fulfill any part of its obligations under
this Agreement.
15.2 TEDCO'S OBLIGATIONS.
Tedco shall indemnify and hold PSN and its Affiliates, and their
respective directors, officers and employees (the "PSN Indemnified
Part(y)(ies)") and the Titan Indemnified Part(y)(ies) harmless from
and against any and all costs, expenses and/or liabilities, incurred
by the PSN Indemnified Part(y)(ies) or the Titan Indemnified
Part(y)(ies) (including, but not limited to, (i) costs of
investigation and defense, including without limitation court costs
and reasonable attorneys and other third party fees and (ii) to the
extent permitted by Law, any fines, penalties and forfeitures in
connection with any proceedings against a PSN or Titan Indemnified
Party) caused by (a) any willful or intentional Breach of this
Agreement by Tedco; (b) the infringement by Tedco or any Affiliate on
rights protected under the patent, trademark, servicemark, trade
secret or copyright laws of the United States or any state thereof or
of any other governmental
26
entity or body outside the United States; and/or (c) the retention
and/or use by Tedco of any vendor or supplier to fulfill any part of
its obligations under this Agreement.
15.3 TITAN'S OBLIGATIONS.
Titan shall indemnify and hold the PSN Indemnified Part(y)(ies) and
the Tedco Indemnified Part(y)(ies) harmless from and against any and
all costs, expenses and/or liabilities, incurred by the PSN
Indemnified Part(y)(ies) or the Tedco Indemnified Part(y)(ies)
(including, but not limited to, (i) costs of investigation and
defense, including without limitation court costs and reasonable
attorneys and other third party fees and (ii) to the extent permitted
by Law, any fines, penalties and forfeitures in connection with any
proceedings against a PSN or Tedco Indemnified Party) caused by (a)
any willful or intentional Breach of this Agreement by Titan; (b) the
infringement by Titan or any Affiliate on rights protected under the
parent, trademark, servicemark, trade secret or copyright laws of the
United States or any state thereof or of any other governmental entity
or body outside the United States; and/or (c) the retention and/or use
by Titan of any vendor or supplier to fulfill any part of its
obligations under this Agreement.
27
16. BREACH
16.1 DEFINITION.
Subject to the terms and conditions of Section 15, if either PSN or
Tedco, on the one hand, or Titan, on the other hand, fails to
perform any material obligation under this Agreement, and such
failure shall continue unremedied for thirty (30) days following
written notice of such failure (a) from Titan, if such failure is
by PSN or Tedco and (b) jointly by Tedco and PSN if such failure is
by Titan, such failure shall, after expiration of said thirty (30)
days constitute a "Breach(ing)" of this Agreement.
16.2 CONSEQUENCES.
In the event of a Breach of this Agreement, the non-Breaching party
may, at its option, terminate this Agreement without any further
obligation or liability hereunder. The non-Breaching party shall
also have the right to pursue any and all rights it may have
against the Breaching party now or hereafter under the Law,
including without limitation (i) the right to obtain injunctive
relief, if necessary, in order to prevent the other party from
willfully or intentionally Breaching its obligations under this
Agreement or to compel the other party to perform its obligations
under this Agreement; and (ii) the right to reasonable attorneys'
and other third-party fees. For the purposes hereof, in the case
of a Breach by either PSN or Tedco, the non-Breaching party shall
be Titan and, in the case of a Breach by Titan, the non-Breaching
party shall be Tedco and PSN, collectively.
28
17. COMPLIANCE WITH LAWS.
Tedco and PSN agree that they will not, directly or through an
intermediary, give or offer to give anything of value to a
government official or representative or a political party official
or candidate for political office for purposes of inducing such
person to use his influence to assist Tedco, PSN or Titan in
obtaining or retaining business or to benefit Tedco, PSN or Titan
or any other person in any way, and will not otherwise violate the
U.S. Foreign Corrupt Practices Act of 1977. Any such breach of the
foregoing obligation shall constitute a material breach of this
Agreement. Tedco and PSN acknowledge that the products to be
provided by Titan pursuant to this Agreement may be subject to
approval for export by the United States government, and,
accordingly, each of the parties hereto agree that this Agreement
is subject to all United States laws and regulations related to
export and to all administrative acts of the United States
Government pursuant to such laws and regulations.
29
18. FORCE MAJEURE.
As used in this Agreement, "Force Majeure" means any act of God,
governmental action or Law (whether in its sovereign or contractual
capacity), or any other circumstances reasonably beyond the control
of the party including, but not limited to, weather or acts or
omissions of the other party or any other Person (excluding any
Affiliates of such party). If any failure or delay by either party
in the performance of any of that party's obligations under this
Agreement results from a Force Majeure, that failure or delay shall
not constitute a Breach of this Agreement.
30
19. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT:
(a) IT IS EXPRESSLY AGREED THAT THE PARTIES' SOLE OBLIGATIONS, LIABILITIES
AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING FROM NEGLIGENCE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE TRANSACTIONS
CONTEMPLATED HEREBY ARE LIMITED TO THOSE SET FORTH IN SECTIONS 15, 16
AND 23 AND ALL OTHER REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED.
(b) IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ACTUAL DAMAGES PURSUANT TO
THIS AGREEMENT IN AN AMOUNT WHICH IN THE AGGREGATE IS GREATER THAN THE
TOTAL AMOUNT DUE PURSUANT HERETO AS SET FORTH IN SECTION 4.1.
(c) IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER FORESEEN OR NOT, OCCASIONED BY ANY
FAILURE TO PERFORM OR THE BREACH OF ANY OBLIGATION UNDER THIS
AGREEMENT FOR ANY CAUSE WHATSOEVER.
(d) THE FOREGOING DOES NOT, AND IS NOT INTENDED TO, PRECLUDE ANY PARTY
FROM OBTAINING INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDIES WHICH ARE
SPECIFICALLY PERMITTED HEREUNDER.
31
20. ASSIGNMENT.
Neither this Agreement nor any duty or right under it shall be delegated or
assigned by any party without the prior written consent of each other
party, which consent shall not be unreasonably withheld.
32
21. CONFIDENTIALLY
21.1 DEFINITIONS.
As used in this Agreement, the following terms shall have the meaning
set forth below:
(a) "Disclosing Party" shall mean the party which is disclosing
Proprietary Information:
(b) "Receiving Party" shall mean the party to which Proprietary
Information is disclosed:
(c) "Proprietary Information" shall mean information of any nature in
any form, including without limitation all writings, memoranda,
copies, reports, papers, surveys, analyses, drawings, letters,
computer printouts, software, specifications, data, graphs,
charts, sound recordings and/or pictorial reproductions which
have been reduced to written form. All Proprietary Information
shall be marked as proprietary with an appropriate legend,
marking, stamp or other obvious written identification by the
Disclosing Party prior to disclosure. In the event either party
discloses its Proprietary Information to the other party other
than in the manner provided for above, the Disclosing Party shall
promptly inform the Receiving Party that such information is
deemed proprietary, and shall provide the Receiving Party with a
brief written description of such information within thirty (30)
days of such disclosure, identifying therein the manner, place,
and date of such disclosure and the names of the Receiving
Party's representatives to whom such disclosure was made.
21.2 OBLIGATIONS CONCERNING PROPRIETARY INFORMATION.
Upon receiving Proprietary Information, the Receiving Party shall keep
in strict confidence and not disclose to any Person any of the
Disclosing Party's Proprietary Information except as otherwise
provided by the terms and conditions of this Agreement. The Receiving
Party shall not use such Proprietary Information except for the
purposes expressly identified herein without the prior written
approval of the Disclosing Party.
The Receiving Party shall not be liable for disclosure or use of any
Proprietary Information if the same:
33
(a) is in or enters the public domain, other than by a Breach of this
Agreement, prior to such disclosure by the Receiving Party;
(b) is known to the Receiving Party at the time of first receipt or
thereafter becomes known to the Receiving Party without similar
restrictions from a source other than the Disclosing Party whom
the Receiving Party knows not to be similarly bound; or
(c) is developed by the Receiving Party independently of any
disclosure thereunder as evidenced by written records.
The Receiving Party will make Proprietary Information of the
Disclosing Party available only to those of its employees having a
"need to know" in order to carry out their functions in connection
with the purpose stated in the recitals hereof. The Receiving Party
shall not mechanically copy or otherwise reproduce Proprietary
Information except for the purpose of internal evaluation. Each of
such copies or reproductions shall contain the same proprietary
marking as the original.
The disclosure of Proprietary Information hereunder shall not be
construed as granting either a license under any patent, application,
or copyright, or any right of ownership in said Proprietary
Information, nor shall such disclosure constitute any representation,
warranty, assurance, guarantee or inducement by the Disclosing Party
with respect to infringement of patents or other rights of others.
Should the Receiving Party be required to disclose Proprietary
Information received by order of a governmental agency, legislative
body or court of competent jurisdiction, the Receiving Party shall
promptly notify the Disclosing Party thereof, and, upon the request of
the latter shall fully cooperate with the Disclosing Party in
contesting such disclosure. If after such contest disclosure is still
required, then the Receiving Party shall seek confidential treatment
of such information from such governmental agency, body or court.
Except in connection with failure to discharge responsibilities set
forth in the proceeding sentence, neither party shall be liable in
damages for any disclosures pursuant to such governmental, legislative
or judicial order.
All Proprietary Information in tangible forms of expression which has
been delivered or thereafter created by copy or reproduction pursuant
to this Agreement shall be and remain the property of the
34
Disclosing Party. All such Proprietary Information and any and all
copies and reproductions thereof shall, within thirty (30) days of
written request by the Disclosing Party, be either promptly returned
to the Disclosing Party or destroyed at the Disclosing Party's
direction. In the event of such requested destruction, the Receiving
Party shall provide to the Disclosing Party written certification of
compliance therewith within thirty (30) days of such written request.
21.3 PRESS RELEASE.
The parties shall use their best reasonable efforts to agree upon a
mutually acceptable press release with respect to the parties' general
business relationship under this Agreement and to jointly issue and
release such press release as soon as reasonably practical.
21.4 GENERAL.
The provisions of this Section 21 shall control in lieu of and
notwithstanding any proprietary or restrictive legends or statements
inconsistent with this Section 21 which may be associated with any
particular information hereunder. The provisions of this Section 21
shall continue to govern the exchange of information for five (5)
years after this Agreement is terminated.
35
22. TERM
Except as otherwise set forth herein, the "Term" of this Agreement shall be
[...***...] from the date hereof, at which time this Agreement, as well as
all rights and obligations of the parties hereunder (except as set forth in
Section 24.8), shall automatically terminate.
* Confidential Treatment Requested
36
23. SETTLEMENT OF DISPUTES; ARBITRATION.
23.1 DISPUTES.
Any dispute or disagreement arising between any of the parties hereto
shall be resolved according to the following dispute resolution
procedure: First, such dispute shall be addressed to each party's
project manager for discussion and attempted resolution. If any such
dispute cannot be mutually resolved by such project managers within
five (5) business days, then such dispute shall be immediately
referred to the President of each party for discussion and attempted
resolution. If such dispute cannot be mutually resolved by such
parties' representatives within fifteen (15) days (or such longer
period as may be mutually agreed upon), then such dispute or
disagreement shall be referred to arbitration in London, England, in
accordance with the International Commercial Arbitration Rules (the
"Arbitration Rules") of the International Chamber of Commerce ("ICC")
in effect on the date such notice is given, except that such
arbitration shall be before one arbitrator. Once appointed, the
arbitrator shall appoint a time and place for a prehearing status
conference not more than fifteen (15) days from the date of his or her
appointment, and shall appoint a time and place for a final hearing
not more than forty-five (45) days from the date of the status
conference. The final hearing shall conclude no later than thirty
(30) days after its commencement. The parties hereto agree and
acknowledge that in the event of any dispute or disagreement between
them, each of the parties shall continue to perform their obligations
pursuant to this Agreement during the pendency of the dispute
resolution procedures set forth herein; PROVIDED, HOWEVER, that Titan
shall only be obligated to perform pursuant to this Agreement so long
as (a) Tedco and PSN continue to make payments hereunder pursuant to
the provisions of Section 6.1 hereof, or (b) Titan is able to continue
drawing dawn under the Letters of Credit as described in Section 6.2,
6.3 and/or 6.4 hereof. Notwithstanding the above, the parties shall
have the right to seek injunctive relief in any federal or state court
of competent jurisdiction in California.
23.2 ARBITRATOR.
The party that demands arbitration of the unresolved dispute or
disagreement shall specify in writing the matter to be submitted to
arbitration and at the same time choose and nominate a
37
competent person to act as the arbitrator. Within seven (7) days
after such notice, the other party shall indicate in writing its
concurrence or non-concurrence in the arbitrator nominated by the
other party. If the parties to such arbitration fail to concur in the
proposed arbitrator, then upon application by either party, the
dispute or disagreement shall be referred for resolution by a single
arbitrator appointed in accordance with the Arbitration Rules by the
ICC.
23.3 AWARD.
Prior to the final hearing of any arbitration proceeding, each party
shall present to the arbitrator and the other party a proposed award.
The arbitrator shall be required to adopt as the final award, and
without modification, one of the awards proposed by the parties. The
arbitrator shall render a written decision stating with reasonable
detail the reasons for the award adopted. Any cash component of the
adopted award shall be payable in United States dollars through a bank
in the United States.
23.4 COSTS.
Each party shall bear its own cost of preparing for and presenting its
case; and the cost of arbitration, including the fees, and expenses of
the arbitrator, will be shared equally by the parties to such
arbitration.
23.5 ENFORCEMENT.
The arbitration award shall be final and binding upon the parties and
may be confirmed by the judgment of any court having appropriate
jurisdiction including without limitation California. Each party
hereto specifically reserves the right to seek specific performance,
injunctive relief and their equitable remedies in any court having
appropriate jurisdiction. To the extent that this Agreement provides a
party with a right to seek injunctive relief, such party may seek
injunctive relief in any state or federal court of competent
jurisdiction to enforce its rights as set forth in this Agreement.
38
24. MISCELLANEOUS
24.1 APPLICABLE LAW; ENTIRE AGREEMENT: MODIFICATION.
The existence, validity, construction, operation and effect of this
Agreement (including without limitation Section 23), and the Schedules
and Exhibits hereto, shall be determined in accordance with, and be
governed by, the laws of the State of California. This Agreement, and
the Schedules and Exhibits hereto, constitute the entire agreement
between the parties and supersede all previous understandings,
commitments or representations concerning the subject matter. Each
party acknowledges that the other party has not made any
representations other than those which are specifically set forth
herein. This Agreement may not be amended or modified in any way, and
none of its provisions may be waived, except by a writing signed by an
authorized officer of the party against whom the amendment,
notification or waiver is sought to be enforced.
24.2 NOTICES.
All notices and other communications from either party to the other
hereunder shall be in writing and shall be deemed received upon actual
receipt when personally delivered, upon acknowledgment of receipt if
sent by facsimile, or upon the expiration of the third business day
after being deposited in the United States mails, postage prepaid,
certified or registered mail, addressed to the other party as follows.
39
TO PSN:
P.T. Pasifik Satelit Nusantara
Attn: Director
Sentra Mulia, Floor 12
Jalan R. Rasuna Said
Kav. X6 No. 8, Jakarta 12940
TO TEDCO GROUP LIMITED:
Tedco Group Limited
Attn: Director
Takashimaya Building
Tower A, Floor 23
NG EE AN
Orchard Road
Singapore
TO TITAN INFORMATION SYSTEMS:
Titan Information Systems Corp.
Attn: President
3033 Science Park Road
San Diego, California 92121
All payments to be made under this Agreement, if made by mail,
shall be deemed to have been made on the date of receipt thereof.
The parties hereto may change their addresses by giving notice
thereof in conformity with this Section 24.2.
24.3 SEVERABILITY.
Nothing contained in this Agreement shall be construed so as to
require the commission of any act contrary to Law, and wherever
there is any conflict between any provision of this Agreement and
any Law, such Law shall prevail; PROVIDED, HOWEVER, that in the
event of any such conflict, the provisions of this Agreement so
affected shall be curtailed and limited only to the extent
necessary to permit compliance with the minimum legal requirement,
and no other provisions of this Agreement shall be affected thereby
and all such other provisions shall continue in full force and
effect.
24.4 TAXES.
Except as set forth in Section 7, PSN (with respect to the Regional
Equipment) and Tedco (with respect to the Rural Terminals) shall be
responsible for any and all property or sales taxes assessed
40
by any local, state, national or international, public or
quasi-public governmental entity based upon the sale of such
Products to Tedco and/or PSN, as applicable hereunder. Each party
shall be responsible for the payment of its own income or similar
taxes.
24.5 SUCCESSORS, ASSIGNMENT.
Subject to the limitations and exceptions set forth in Sections 19
and 20, this Agreement shall be binding on and shall inure to the
benefit of any and all successors and permitted assigns of the
parties; PROVIDED, HOWEVER, that no assignment of this Agreement
shall relieve either party hereto of its obligations to the other
party. Any purported assignment by either party not in compliance
with the provisions of this Agreement shall be null and void and
of no force and effect.
24.6 HEADINGS.
The descriptive headings of the several sections and paragraphs of
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
24.7 PREEMINENCE OVER EXHIBITS.
In the event that any inconsistency exists between the provisions
of this Agreement and any Schedules or Exhibits attached hereto,
the provisions of this Agreement shall supersede the provisions of
any such Schedules or Exhibits.
24.8 SURVIVAL OF PROVISIONS.
The rights and obligations of Tedco, PSN and Titan pursuant to
Sections 15, 19, 21, 23, 24.4 and 24.8 shall survive any
termination of this Agreement.
24.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained herein or made by the
parties, and each of them, in connection herewith shall survive the
execution and delivery of this Agreement and any independent
investigation made by either party.
24.10 NO THIRD-PARTY BENEFICIARIES.
The parties specifically disavow any desire or intention to create
a "third-party" beneficiary contract, and specifically declare that
no Person, except for the parties and their successors, shall have
any rights hereunder nor any right of enforcement hereof.
41
24.11 NON-WAIVER OF BREACH.
Each party hereto may specifically waive any Breach of this
Agreement by the other party, provided that no such waiver shall be
binding or effective unless in writing and no such waiver shall
constitute a continuing waiver of similar or other Breaches. A
waiving party, at any time, and upon notice given in writing to the
Breaching party, may direct future compliance with the waived term
or terms of this Agreement, in which event the Breaching party
shall comply as directed from such time forward.
24.12 COUNTERPARTS.
This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and all such counterparts
together shall constitute but one and the same instrument. The
parties also agree that this Agreement shall be binding upon the
faxing by each party of a signed signature page thereof to the
other party. If such faxing occurs, the parties agree that they
will each also immediately post, by an international express
courier such as Federal Express, DHL, TNT (or other similar
services), a fully executed original counterpart of the Agreement
to the other party
42
25. DOCUMENTS.
Each party hereto agrees to execute and, if necessary, to file with the
appropriate governmental entities, such documents, and take such further
action, as the other party hereto shall reasonably request in order to
carry out the purposes of this Agreement.
43
26. NO AGENTS.
Except as otherwise expressly provided in this Agreement, no party hereto
shall act as an agent of any other party hereto, or take any action or do
anything that would create an obligation or liability of any party hereto
or cause any other party (not a party to this Agreement) to believe that
such party is an agent of any party hereto or that such party is authorized
to act on behalf of any party hereto. Notwithstanding the foregoing, the
parties hereto agree and acknowledge that, for the purposes of Sections 8
and 9 of this Agreement, PSN is hereby authorized by Tedco to act on behalf
of Tedco in any dealings with Titan such that all rights and obligations of
Titan pursuant thereto shall be exercised on behalf of Tedco by PSN.
44
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TITAN INFORMATION SYSTEMS CORPORATION P.T. PASIFIK SATELIT NUSANTARA
By: /s/ Fredrick L. Judge By: /s/ Adi R. Adiwoso
----------------------------------- ------------------------------
Its: President and CEO Its: President, Director
---------------------------------- ------------------------------
TEDCO GROUP LIMITED
By: /s/ Ronald Korompis
------------------------------
Its: Director
-----------------------------
45
Schedule 1.8(a)
HUB Key Elements
(Attached hereto: totaling page)
TITAN/PSN Proprietary
Equipment Quantity
- ---------------------------------------------------------------------------
DAMA Network Control Computer
(Redundant) [...***...]
Keyboard and Monitor [...***...]
DAMA Network Control Software [...***...]
Channel Control Mode (Burst Modem) [...***...]
Communication Modems [...***...]
Voice Cards
(may be integrated with modem) [...***...]
PSTN Integration Unit [...***...]
Cables and Equipment Rack [...***...]
* Confidential Treatment Requested
Schedule 1.8(b)
NCS Key Elements
(Attached hereto: totaling page)
TITAN/PSN Proprietary
Equipment Quantity
- ---------------------------------------------------------------------------
Master DAMA Network Control Computer
(Redundant) [...***...]
Keyboard and Monitor [...***...]
Master Network Control Software [...***...]
Fully redundant Channel Control Modems
(Burst Modem) [...***...]
Communications Modems [...***...]
Voice Cards (may be integrated with modem) [...***...]
Cables and Equipment Rack [...***...]
* Confidential Treatment Requested
Schedule 2.1 (a)
[...***...]
* Confidential Treatment Requested
Schedule 2.1(b)
[...***...]
* Confidential Treatment Requested
SCHEDULE 2.1(C)
RURAL TELEPHONE SYSTEM
MASTER MILESTONE SCHEDULE
[...***...]
* Confidential Treatment Requested
SCHEDULE 4.3(a)
[...***...]
SCHEDULE 4.3 (b)
[...***...]
* Confidential Treatment Requested
PROPRIETARY 9/17/96
SCHEDULE 5(a)
RURAL TELEPHONE SYSTEM
DELIVERY SCHEDULE
[...***...]
* Confidential Treatment Requested
Schedule 12.2
Satellite System Specifications
(Attached hereto; totalling 3 pages)
Titan/PSN Proprietary
PAYLOAD DESIGN:
[LOGO] C-BAND FREQUENCY & POLARIZATION PLAN [LOGO]
[ART]
SPACECRAFT CHARACTERISTICS/PERFORMANCE
- -------------------------------------------------------------------------------
PAYLOAD
C-Band
Number of transponders 24 standard, 6 extended
Channel bandwidth 36 MHz
Channel guard band 4 MHz
Frequency bands
Receive 5927 to 6663 MHz
Transmit 3402 to 4198 MHz
Saturating flux density -80 to -95 dBW/m(2)
G/T -2.5 to -6.5 dB/K
EIRP 35 dBW
Antenna
Design Dual-surface gridded shaped reflectors,
one corrugated feed horn per surface
diplexed for transmit and receive
Coverage Indonesia, other Asian countries,
Australia, and New Zealand
Receivers 1.5 dB noise figure, 29 dB gain.
Standard: 2225 MHz
Extended: 3025 MHz frequency translation
Channel gain control 0 to 15 dB attenuation in 1 dB steps
High power amplifiers 30-21.75W SSPAs
B - 26.75W SSPAs
Redundancy
LNA 4-for-2 (2 groups)
SSPA 2 rings (15-for-12)
Standard D/C 4-for-2 (2 groups)
Extended D/C 4-for-2
Ku-Band
Number of transponders 4
Channel bandwidth 72 MHz
Channel guard band
Between channels (1-2 & 3-4) 88 MHz
At band edge (between Chl 2-3) 288 MHz
Frequency bands and polarization
Receive 13754 to 14486 MHz (horizontal &
vertical)
Transmit 10954 to 11686 MHz (horizontal &
vertical)
Saturating flux density -80 to -95 dBW/m(2)
G/T 3.0 dB/K
EIRP 50 dBW
Antenna
Design Dual-surface gridded shaped reflectors,
one corrugated feed horn per surface
Coverage Sumatra, Java, Bali, SE Asia, Eastern
China, Korea, Japan, Guam
Receivers 1.5 dB noise figure, 57.5 dB gain.
2800 MHz frequency translation
Channel gain control 0 to 15 dB attenuation in 1 dB steps
High power amplifiers 6-135W TWTAs
Redundancy
Receivers 4-for-2
TWTAs 6-for-4 135W TWTAs
- -------------------------------------------------------------------------------
AMENDMENT NO. 1
TO
AMENDED AND RESTATED AGREEMENT
(NO. 030/KON/PSN-IX/95)
BETWEEN
TITAN INFORMATION SYSTEMS CORPORATION
AND
PT. PASIFIK SATELIT NUSANTARA
FOR
"EQUIPMENT PURCHASE"
AMENDMENT NO. 1 TO
AMENDED AND RESTATED AGREEMENT
(NO. 030/KON/PSN-IX/95) FOR EQUIPMENT PURCHASE
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT (NO.
030/KON/PSN-IX/95) FOR EQUIPMENT PURCHASE (this "Amendment") is entered into
as of December 4, 1997 by and between TITAN INFORMATION SYSTEMS CORPORATION,
a Delaware Corporation ("Titan"), and PT. PASIFIK SATELIT NUSANTARA, an
Indonesian corporation ("PSN").
WHEREAS, Titan, PSN and Tedco Group Limited, a Singaporean corporation,
entered into an Amended and Restated Agreement (No. 030/KON/PSN-IX/95) for
Equipment Purchase, dated September 17, 1996 (the "Agreement"). Capitalized
terms contained herein shall have the meanings set forth in the Agreement;
WHEREAS, PSN desires to purchase from Titan and Titan desires to sell to
PSN additional Rural Terminals for use in Indonesia, including its Key
Elements; and
WHEREAS, Titan and PSN desire to amend the Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises set forth below, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Section 4.2 of the Agreement is hereby amended to read in its entirety
as follows:
4.2 FOLLOW-ON ORDERS.
(A) FIRST FOLLOW-ON ORDER.
Titan will design, manufacture, or have manufactured and
deliver to PSN an additional [...***...] without
[...***...] (the "First Follow-On Order") to be deployed
in Indonesia only. Delivery of the First Follow-On Order
shall be made in the manner set forth in Section 5. the
provisions of Section 4.1, the aggregate purchase price
payable by PSN to Titan for the Rural Terminals contained
in the First Follow-On Order shall be as follows:
* Confidential Treatment Requested
1.
[...***...]
The non-recurring engineering fee covers the following
upgrades to the Rural Terminals to be delivered under the
First Follow-On Order and will be payable upon delivery of
reorder Rural Terminal under the First Follow-On Order:
(i) Redundant NCS, as specified on Schedule 4.2(a)
attached hereto.
(ii) Metering Pulse Implementation, as specified on
Schedule 4.2(a) attached hereto.
(iii) TUT Replacement, as specified on Schedule
4.2(a) attached hereto.
(iv) Project Plan for Improved Channel Spacing, as
specified on Schedule 4.2(a) attached hereto.
(B) ADDITIONAL FOLLOW-ON ORDERS.
Upon delivery of the First Follow-On Order to PSN and
payment therefore to Titan in accordance with Section
4.2(a), PSN may order, until December 31, 1999, up to an
additional [...***...] Rural Terminals without antenna, in
minimum increments of [...***...] per order, at a price of
[...***...] to be deployed in Indonesia only (any such
order being called an "Additional Follow-On Order").
Deliveries of Rural Terminals ordered pursuant to this
Section will be delivered at a rate of [...***...] Rural
Terminals per month, unless changed in accordance with
Section 5.
* Confidential Treatment Requested
2.
2. Section 5 of the Agreement is hereby amended to read in its entirety as
follows:
5. DELIVERY AND PRODUCTION SCHEDULE.
Delivery of the first [...***...] Rural Terminals under the First
Follow-On Order shall take place no later than December 31, 1997,
and the remainder of the deliveries under the First Follow-On
Order shall take place as set forth on Schedule 5(b) attached
hereto. Monthly delivery quantities may be increased with no
increase in unit price, on mutual agreement of the parties and
with ninety (90) days advance notice.
3. A new Section 6.3(c) is hereby added to the Agreement and shall read
in its entirety as follows:
(C) FIRST FOLLOW-ON ORDER PSN LETTERS OF CREDIT.
No later than December 10, 1997, PSN shall post an irrevocable
letter of credit in U.S. dollars in the amount of [...***...]
in favor of Titan confirmed with a U.S. chartered bank mutually
agreeable to Titan and PSN upon terms mutually agreeable to
PSN. Thereafter, commencing on January 2, 1998 (the "Letter of
Credit Date"), PSN shall deliver to Titan four consecutive
irrevocable letters of credit in U.S. dollars, with one such
letter of credit to be delivered on the Letter of Credit Date
and each other letter of credit to be delivered every four
months following the Letter of Credit Date, each in the amount
of [...***...] confirmed with a U.S. chartered bank mutually
agreeable to Titan and PSN upon terms mutually agreeable to
PSN. The first letter of credit shall be used to pay the
non-recurring engineering fee of [...***...] pursuant to
Section 4.2(a) together with payment in full for the first
[...***...] Rural Terminals delivered pursuant to the First
Follow-On Order; each of the four subsequent letters of credit
issued pursuant to this Section 6.3(c) shall be used to pay for
[...***...] additional Rural Terminals to be delivered pursuant
to the First Follow-On Order. Each letter of credit delivered
to Titan pursuant to this Section 6.3(c) shall allow Titan to
draw down, at sight, each such letter of credit upon written
notice by Titan to such bank that (a) in the case of the
non-recurring engineering fee pursuant to Section 4.2(a), Titan
has shipped the first Rural Terminal to PSN under the First
Follow-On Order, such draw down being in
* Confidential Treatment Requested
3.
an amount equal to [...***...] and/or (b) Titan has shipped a
Rural Terminal under the First Follow-On Order to PSN, such
draw down being in an amount equal to the product of (i)
[...***...] multiplied by (ii) the number of Rural Terminals
referenced in the written notice to the bank as having been
shipped. In the event that PSN notifies Titan of an increase
in the monthly delivery quantities pursuant to Section 5, then
the amount of the irrevocable letter of credit should be
increased to an amount equal to the product of (i) [...***...]
multiplied by (ii) the quantity of Rural Terminals deliverable
in such four month period.
4. A new Section 6.3(d) is hereby added to the Agreement and shall read in
its entirety as follows:
(D) ADDITIONAL FOLLOW-ON ORDER PSN LETTERS OF CREDIT.
No less than thirty (30) days prior to the scheduled delivery
date for Rural Terminals under the first Additional Follow-On
Order pursuant to Section 4.2(d) (the "Additional Letter of
Credit Date"), PSN shall post an irrevocable letter of credit
in U.S. dollars in the amount of [...***...] in favor of Titan
confirmed with a U.S. chartered bank mutually agreeable to
Titan and PSN upon terms mutually agreeable to PSN. Thereafter
PSN shall deliver to Titan four consecutive irrevocable letters
of credit in U.S. dollars, with one such letter of credit to be
delivered every four months following the Additional Letter of
Credit Date (assuming that Additional Follow-On Orders are
being made pursuant to Section 4.2(b)), each in the amount of
[...***...] confirmed with a U.S. chartered bank mutually
agreeable to Titan and PSN upon terms mutually agreeable to
PSN. Each of the four subsequent letters of credit issued
pursuant to this Section 6.3(d) shall be used to pay for
[...***...] additional Rural Terminals to be delivered pursuant
to Additional Follow-On Orders. Each letter of credit
delivered to Titan pursuant to this Section 6.3(d) shall allow
Titan to draw down, at sight, each such letter of credit upon
written notice by Titan to such bank that Titan has shipped a
Rural Terminal under the Additional Follow-On Order to PSN,
such draw down being in an amount equal to the product of (i)
4.
[...***...] multiplied by (ii) the number of Rural Terminals
referenced in the written notice to the bank as having been
shipped. In the event that PSN notifies Titan of an increase
in the monthly delivery quantities pursuant to Section 5, then
the amount of the irrevocable letter of credit should be
increased to an amount equal to the product of (i) [...***...]
multiplied by (ii) the quantity of Rural Terminals deliverable
in such four month period.
5. The first and second sentences of Section 7 of the Agreement are
hereby amended to change "Titan's plant in San Diego, California" to "point
of manufacture in the U.S." The third sentence of Section 7 of the Agreement
is hereby amended to change "Titan's San Diego, California plant" to "point
of manufacture in the U.S."
6. Except as expressly amended pursuant to this Amendment, the
Agreement shall continue in full force and effect.
7. This Amendment shall be governed by the laws of the State of
California as applicable to contracts entered into and performed entirely
within the State of California by residents of California.
8. This Amendment may be executed in counterparts, each of which shall
be enforceable against the party actually executing such counterpart, and
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
TITAN INFORMATION SYSTEMS PT. PASIFIK SATELIT NUSANTARA
CORPORATION
By: /s/ Frederick L. Judge By: /s/ Adi Adi Woso
------------------------ ----------------------------
Frederick L. Judge
President and Name:
Chief Executive Officer --------------------------
By: /s/ Carter S. Miller Title:
------------------------ ------------------------
Carter S. Miller
Managing Director
* Confidential Treatment Requested
5.
SCHEDULE 4.2(a)
UPGRADES TO RURAL TERMINALS
1. REDUNDANT NCS.
Titan will develop a capability to have a second NCS suite of hardware
operate as a Redundant NCS and take over if the primary NCS fails. The
second NCS will utilize an NCS computer, a CC computer and a full set of FOW
and ROW modems and a hardware switch to switch from the primary to the
secondary NCS. The secondary NCS will maintain a data base that duplicates
the primary NCS so that the secondary NCS has full knowledge of all calls
that are in progress and will be able to take over operation from the primary
NCS without disconnecting calls in progress. The system will include one NMS
computer; since the system can continue operation even if the NMS fails,
redundancy of that computer is not required. The various operating
components, NMS, NCS, CC and modems will exchange keep alive packets to
assure that all components are working. If the keep alive packets are not
received properly, a baton pass will be initiated so that the secondary NCS
takes over operation and the primary NCS is taken off line.
This development will provide for redundancy when the secondary NCS is
co-located with the primary NCS. It will be easily extendible, with some
separately funded hardware and software additions, to provide for the case
when the secondary NCS is at a different geographic location from the primary
NCS.
The development effort addressed herein is the development of the
software to implement the redundancy function. PSN will need to separately
procure the Secondary NCS' computers, CCM1500s and redundancy switch needed
to install the function.
This facility is planned to be operational in March 1998.
2. METERING PULSE IMPLEMENTATION.
Titan will add generation of the metering pulse in the RTT hardware and
software. The metering pulse is a [...***...]. The tone is
only applicable for RTT-originated calls, as it is used for initiating
billing to a payphone. The tone is added to the voice channel from the RTT
towards the telephone attached to the RTT whenever the PSTN phone answers the
call (this indicates to a payphone, such as the TUT phone, that it should
start charging the user).
The implementation requires the following changes:
* Confidential Treatment Requested
1.
(A) The RTT hardware starting with serial number 090046002 will
contain new circuitry to generate the tone. It will start and
stop the generation of the tone upon command from the CSP.
(B) The CSP software was changed at version 3.17 to create the
metering pulse upon receipt of the answer indication from Telkom.
3. TUT REPLACEMENT.
Titan will implement new code such that the billing information is
provided over the satellite link, rather than being calculated by the TUT.
This will allow PSN to use any inexpensive phone at the RTT site.
The planned architecture is that the NCS will connect to a computer
provided by PSN that contains the billing tariff algorithms and provides the
billing calculation. The final cost of the call will then be transmitted
over the satellite link and printed on a small printer, provided by PSN, that
is attached to the data port on the RTT Indoor Unit.
4. PROJECT PLAN FOR IMPROVED CHANNEL SPACING.
The original Xpress Connection development contract specified that the
system would be capable of providing a minimum of [...***...] circuits per
transponder and channel tuning increments and occupancy would not be greater
than [...***...] per carrier. The [...***...] occupancy limit allows for up
to [...***...] per transponder. In order to provide the possibility of
increasing the number of channels per transponder, Titan will decrease the
channel tuning and occupancy to [...***...] per carrier. With this spacing,
the number of channels per transponder could potentially be increased to
[...***...] channels per transponder if link budget restrictions and maximum
satellite power restrictions could be met.
The number of channels that can be supported on a transponder is limited
by several factors such as satellite power limits, rain fade,
inter-modulation products, local interference, and adjacent channel
interference. The combined effects of these, and how much margin must be
designed into the link budget to account for them, can be most accurately
measured by gathering data from a system after it is running with a large
volume of traffic. Therefore, Titan is proposing that the system be operated
with [...***...] channels per transponder and then analyze the results and
determine if it is practical to operate the system with more than [...***...]
channels per transponder.
Titan plans to have this development available in January 1998.
* Confidential Treatment Requested
2.
SCHEDULE 5(b)
RURAL TELEPHONE SYSTEMS
DELIVERY SCHEDULE
[...***...]
* Confidential Treatment Requested
AMENDMENT
(No.045/KON/PSN-XII/97)
TO
AMENDMENT NO. 1
(No.044/KON/PSN-XII/97)
BETWEEN
TITAN INFORMATION SYSTEMS CORPORATION
AND
PT. PASIFIK SATELIT NUSANTARA
FOR
"EQUIPMENT PURCHASE"
AMENDMENT TO AMENDMENT NO.1
FOR EQUIPMENT PURCHASE
THIS AMENDMENT TO AMENDMENT NO. 1 (NO. 044/KON/PSN-XII/97) FOR EQUIPMENT
PURCHASE (this "Amendment") is entered into as of December 6, 1997, by and
between TITAN INFORMATION SYSTEMS CORPORATION, a Delaware Corporation
("Titan"), and PT.PASIFIK SATELIT NUSANTARA, an Indonesian corporation
("PSN").
WHEREAS, Titan, PSN and Tedco Group Limited, a Singapore corporation,
entered into an Amended and Restated Agreement (No. 030/KON/PSN-IX/95) for
Equipment Purchase, dated September 17, 1996 (the "Agreement"). Capitalized
terms contained herein shall have the meanings set forth in the Agreement.
WHEREAS, Titan and PSN entered into an Amendment No. 1 to Amended and
Restated Agreement (No. 044/KON/PSN-XII/97) for Equipment Purchase, dated
December 4, 1997 (the "Amendment No. 1"); and
WHEREAS, Titan and PSN desire to amend the Amendment No. 1 as set forth
below.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
promises set forth below, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. A new Section 6.3(c) of the Amendment No. 1 is hereby revised and
added to the Agreement and shall read in its entirety as follows:
(c) FIRST FOLLOW-ON ORDER PSN PAYMENT.
1. For [...***...] unit of Rural Terminal without antennas
(hereinafter referred to as "First Batch") including the
Non-Recurring Fee on pro-rata basis counting the number of
the Rural Terminal being ordered, PSN will issue the
Purchase Order (hereinafter referred to as "PO"), within
10 (ten) working days after the date of this Amendment.
Titan then will deliver the First Batch by December 31,
1997. However, Titan shall immediately, after shipment the
First Batch, send to PSN all necessary shipping documents
(including the Bill of Lading, Titan's commercial invoice,
Packing List and Insurance Certificate, only applicable if
PSN instruct Titan to do so, whereby PSN will be the
beneficiary) (hereinafter referred to
* Confidential Treatment Requested
as "Shipping Documents"), PSN will make the payment to
Titan at the amount of [...***...] for the First Batch and to
be available in Titan's account no later than March 27, 1998.
2. For the remaining [...***...] unit of Rural Terminal
without the antennas, the delivery schedule described in
schedule 5b in the Amendment No. 1 hereby adjusted to begin
deliveries in March 1988. PSN will issue 4(four) PO in
following sequence: (a) the first PO of [...***...] units,
to be issued on February 1, 1998; (b) the second PO of
[...***...] units, to be issued on June 1, 1998: (c) the
third PO of [...***...] units, to be issued on October 1,
1998; (d) the fourth PO of [...***...] units, to be issued
on February 1, 1999. Upon receipt of PO Titan will issue
and invoice and send by fax to PSN. PSN will, not later
than 14 (fourteen) working days after the date of each PO
will pay Titan [...***...] of the amount of the PO by means
of Telegraphic Transfer. The remaining balance of
[...***...] will be paid by means of Telegraphic Transfer
no later than 14 (fourteen) working days after the date PSN
receive the Shipping Document. Titan, subject to the
issuance of the PO by PSN, effective of March 1998, will
begin shipping [...***...] units of Rural Terminal without
the antennas per month until July 1999 whereby the final
shipment of [...***...] units will complete the shipment of
the [...***...] Rural Terminal without antennas.
2. A new Section 6.3(d) is being added to the Agreement by Amendment
No. 1 hereby is amended and shall read in its entirety as follows:
(d) OPTION FOR ADDITIONAL FOLLOW-ON ORDER.
PSN, may, by written notice to Titan on or prior [...***...]
place an order of [...***...] Rural Terminal without antennas
with the price of [...***...]. The delivery schedule, the
issuance of PO and the payment mechanism will use the agreed
terms and condition as stipulated in Section 6.3(c) paragraph
2 above. The Parties shall negotiate in good faith on timely
manner at the appropriate time.
* Confidential Treatment Requested
3. The delivery schedule contains uncertainties that may beyond the
control of PSN; consequently PSN may adjust the schedule of delivery. Titan
agreed to cooperate with PSN on making the necessary adjustment, however PSN
will notified Titan 90 (ninety) days in advance of its intention; provided
however, PSN agree in no event will any adjustment be made shall cause the
delivery schedule to less than [...***...] units per month.
4. [...***...]
5. Except as expressly amended pursuant to this Amendment, the
Agreement and the Amendment No. 1 shall continue in full force and effect.
6. The Parties agreed to prepare and sign a mutually agreeable service
agreement (hereinafter referred to as the "Service Agreement") which
identifies the details of Titan's Warranty performance under the Agreement as
well as necessary Titan support for the Rural Terminals after the Warranty
period is finished. The parties agreed to begin this process within 10 days
after signing this agreement.
7. This Amendment shall be governed by the laws of the State of
California as applicable to contracts entered into and performed entirely
within the State of California by residents of California.
8. This Amendment may be executed in counterparts, each of which shall
be enforceable against the party actually executing such counterpart, and
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
TITAN INFORMATION SYSTEMS PT. PASIFIK SATELIT NUSANTARA
CORPORATION
By: /s/ FREDERICK L. JUDGE By: /s/ ADI R. ADIWOSO
--------------------------------- ---------------------------
Frederick L. Judge Name: Adi R. Adiwoso
President and Title: President, Director
Chief Executive Officer
By: /s/ CARTER S. MILLER
---------------------------------
Carter S. Miller
Managing Director
* Confidential Treatment Requested