EXHIBIT 10.12
REDACTED FOR CONFIDENTIALITY
FIXED PRICE CONTRACT
BETWEEN
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC.
AND
▇▇▇▇▇▇ SPACE & COMMUNICATIONS COMPANY
FOR
GALAXY IX (HS-376)
SATELLITE AND SERVICES
CONTRACT NO. 95-HCG-001
HSC PROPRIETARY
---------------
TABLE OF CONTENTS
PAGE
----
ARTICLE 1. EXHIBITS AND INCORPORATIONS............... 2
ARTICLE 2. ORDER OF PRECEDENCE....................... 3
ARTICLE 3. GOODS AND SERVICES........................ 4
ARTICLE 4. DELIVERABLE ITEMS, SERVICES AND SCHEDULE.. 5
ARTICLE 5. PRICE..................................... 6
ARTICLE 6. PAYMENTS.................................. 7
ARTICLE 7. SPACECRAFT LAUNCH DATE.................... 9
ARTICLE 8. BUYER-FURNISHED ITEMS..................... 11
ARTICLE 9. INSPECTION AND ACCEPTANCE................. 13
ARTICLE 10. ACCESS TO WORK IN PROCESS................. 14
ARTICLE 11. TERMINATION FOR DEFAULT................... 15
ARTICLE 12. EXCUSABLE DELAYS.......................... 17
ARTICLE 13. AMENDMENTS................................ 18
ARTICLE 14. TERMINATION FOR CONVENIENCE............... 19
ARTICLE 15. TITLE - RISK OF LOSS...................... 21
ARTICLE 16. SPACECRAFT WARRANTY....................... 22
ARTICLE 17. INDEMNIFICATION........................... 24
ARTICLE 18. SPACECRAFT NOT LAUNCHED WITHIN SIX MONTHS
AFTER ACCEPTANCE..................... 25
ARTICLE 19. PATENT/COPYRIGHT INDEMNITY................ 26
ARTICLE 20. INTELLECTUAL PROPERTY RIGHTS............... 28
ARTICLE 21. FURNISHED DATA AND INFORMATION, DISCLOSURE
AND USE............................... 29
ARTICLE 22. PUBLIC RELEASE OF INFORMATION............. 31
ARTICLE 23. TAXES..................................... 32
ARTICLE 24. GOVERNING LAW............................. 33
ARTICLE 25. TITLES.................................... 34
ARTICLE 26. NOTICES................................... 35
ARTICLE 27. INTEGRATION............................... 36
ARTICLE 28. CHANGES................................... 37
ARTICLE 29. EFFECTS OF STORAGE ON BATTERIES........... 38
ARTICLE 30. INTER-PARTY WAIVER OF LIABILITY........... 39
ARTICLE 31. SPACECRAFT STORAGE........................ 40
ARTICLE 32. DISPUTES.................................. 41
ARTICLE 33. PERIGEE ROCKET MOTOR INDEMNIFICATION....... 43
ARTICLE 34. ASSIGNMENT................................ 44
ARTICLE 35. EFFECTIVE DATE OF CONTRACT................ 45
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THIS CONTRACT is entered into on the 7th day of August, 1995, by and
between ▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC. (herein called "Buyer" or "HCG"), a
California corporation having a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ AIRCRAFT COMPANY acting through its ▇▇▇▇▇▇
SPACE AND COMMUNICATIONS COMPANY (herein called "Contractor", or "Seller"), a
Delaware corporation having a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, HCG desires to purchase, and Contractor desires to provide
communications Spacecraft; documentation; and related services as hereinafter
specified, and the Parties desire to define the terms and conditions under which
the same shall be furnished,
NOW, THEREFORE, the Parties hereto agree as follows:
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ARTICLE 1. EXHIBITS AND INCORPORATIONS
---------------------------
The following documents are hereby incorporated and made a part of this
Contract with the same force and effect as though set forth herein:
1.1 Exhibit A - Galaxy IX Statement of Work - dated 14 March 1995.
1.2 Exhibit B - Galaxy IX Spacecraft Specification - dated 14 March
1995.
1.3 Exhibit C - Galaxy IX Product Assurance Plan - dated 02 August 1995.
1.4 Exhibit D - Galaxy IX Test Plan - dated 14 March 1995.
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ARTICLE 2. ORDER OF PRECEDENCE
-------------------
In the event of any conflict or inconsistency among the provisions of this
document and the exhibits attached and incorporated into this Contract,
such conflict or inconsistency shall be resolved by giving precedence to
this document, and then to the attached and incorporated exhibits in the
order listed in Article 1 herein, entitled "Exhibits and Incorporations".
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ARTICLE 3. GOODS AND SERVICES
------------------
HCG shall purchase from Contractor and Contractor shall sell and furnish
the goods and services described and referred to in this Article.
3.1 Contractor shall provide the necessary personnel, material, services
and facilities to design, fabricate, test and deliver as required and
perform work in accordance with the requirements of Exhibits A, and B
hereto, one (1) HS 376 type satellite for Galaxy Flight IX
(hereinafter referred to as "Spacecraft" or "Hardware");
documentation; and related services.
3.2 All materials and services specified in Exhibit A, entitled "Galaxy IX
Statement of Work", shall meet the requirements of Exhibit B, entitled
"Galaxy IX Spacecraft Specification". Deliverable documentation is
specified in the Contract Data Requirements List (CDRL) (Table 1) of
Exhibit A.
3.3 The above goods shall be delivered to HCG at the indicated locations
on the dates set forth in Article 4 entitled, "Deliverable Items,
Services and Schedule" herein.
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ARTICLE 4. DELIVERABLE ITEMS, SERVICES AND SCHEDULE
----------------------------------------
4.1 The following goods and services to be furnished under this Contract
shall be furnished on or before the dates specified below:
ITEM DATE OF DELIVERY OR FOB POINT OF DELIVERY
PERFORMANCE PLACE OF PERFORMANCE
----------------------------------------------------------------------------
1. One Spacecraft As Required for a 17 Launch Site
April 1996 launch date
----------------------------------------------------------------------------
2. Launch, Mission In Accordance with In Accordance with
and In-Orbit Test Exhibit A Exhibit A
Support
----------------------------------------------------------------------------
3. Documentation In Accordance with F.O.B. Contractor's Plant
Exhibit A El Segundo, California
----------------------------------------------------------------------------
4.2 Delivery of Hardware items shall be deemed to have occurred at such
time as said items have been placed by Contractor or Contractor's
Delivery Agent at the FOB point of Delivery as stated above. The
Contractor will arrange for all necessary transportation required for
Items 1 and 2 above to the Launch Site (defined herein as Cape
Canaveral Air Station).
4.3 Contractor shall be responsible for obtaining and maintaining all US
Governmental export licenses or authorizations required for the
performance of this Contract.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 5. PRICE
-----
5.1 The total fixed price for Contractor to provide all goods and services
as defined in Article 3 herein is ***********************************.
5.2 Buyer shall pay Contractor the total fixed price stated in Paragraph
5.1 above in accordance with Paragraph 6.2 of Article 6 entitled
"Payments."
5.3 Notwithstanding the foregoing, in the event that the Launch of the
Spacecraft is postponed beyond ************ due solely to Contractor's
late delivery of any Item defined in Article 4 herein, Contractor
shall pay to Customer, as liquidated damages and not as penalty, the
value of ******************************. The liquidated damages date
of ********** shall be revised to account for Excusable Delays as
defined in Article 12 herein or for postponements not solely caused by
Contractor. Any value payable by Contractor to HCG in accordance with
this Paragraph 5.3 shall be either i) payable by Contractor within
thirty (30) days of the Liquidated Damages Date, or ii) deducted by
HCG from any remaining payment values payable to Contractor. At any
time after ***********, Buyer may exercise its right to terminate this
Agreement in accordance with Article 11, in which case Customer's
rights and remedies shall be governed by the provisions of that
Article. Customer shall no other rights or remedies for late delivery
of an Item to be delivered under this Agreement. The liquidated
damages above shall not be applicable to a Satellite which is
delivered for purposes of storage (either on-ground or in-orbit)
unless such storage is required solely to Contractor's unexcused
delay.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 6. PAYMENTS
--------
6.1 Pursuant to the terms set forth in this Article 6, HCG shall pay to
Contractor the price as stated in Article 5 herein, for the Spacecraft
and related goods and services under this Contract.
6.2 Invoices shall be prepared and submitted and payments to Contractor
shall be made in accordance with the payment plan specified in
subparagraph 6.3 below:
6.3 Payment Plan:
MONTH AMOUNT CUMULATIVE
AMOUNT
=============================
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
***** ***** *****
=============================
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6.4 Invoices
6.4.1 Invoices submitted to HCG for payment shall contain a cross-
reference to the Contract number and the date specified in the
Paragraph 6.3 Payment Plan. Contractor shall submit one (1) original
invoice in each instance to:
▇▇▇▇▇▇ Communications Galaxy, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇. ▇▇▇/▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Accounts Payable - ▇▇▇▇ ▇▇▇▇▇▇
6.4.2 Invoice amounts, as specified in Paragraph 6.3, provide for ▇▇▇▇▇▇▇▇
to be submitted by the 15th day of each month and shall be paid by
HCG through inter-company netting of payables within the same fiscal
month for both HCG and Contractor upon receipt of the invoice by
HCG.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 7. SPACECRAFT LAUNCH DATE
----------------------
7.1 This Contract is written on the basis that one (1) flight Spacecraft
supplied hereunder will be Launched on a Delta-II launch vehicle on
the date specified below:
Spacecraft Launch Vehicle Launch Date
---------- -------------- -----------
Galaxy IX Delta-II 17 April 1996
7.2 The price set forth in Paragraph 5.1 includes Contractor furnished
Launch Support Services, Post Launch Support Services, and In-orbit
Test Support Services. The price set forth in Paragraph 5.1 assumes
the launch of the Spacecraft on a Delta-II launch vehicle within
Thirty-Five (35) calendar days after delivery of the Spacecraft to the
Launch Site.
7.3 No less than sixteen (16) weeks prior to the launch date, Buyer shall
order Contractor by notice in writing to commence launch campaign
preparations including, but not limited to, reserving ground and air
or marine transportation for hardware shipment to the Launch Site,
installing necessary communications links to the Launch Site, etc.
7.4 If the Spacecraft launch date defined in Paragraph 7.1 is postponed
for any reason other than the sole fault of Contractor, excluding any
postponement due to an Excusable Delay as defined in Article 12, the
Parties shall negotiate in good faith to determine an equitable
adjustment to the price and affected terms of this Contract, if any.
If the cost of supplies or materials made obsolete or excess as a
result of a such postponement is included in the equitable adjustment,
HCG shall have the right to prescribe the manner of disposition of
such supplies or materials. Costs included in the equitable adjustment
shall include but not be limited to; support personnel standby; extra
travel expenses; transport termination or rescheduling fees; and
installation/de-installation of communication links to the Launch Site
and a profit rate of ********************* or such other profit rate
designated in writing by the Chief Financial Officer of the ▇▇▇▇▇▇
Space and
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Telecommunications Company (or then existing equivalent) for the
applicable expenses.
7.5 Notwithstanding the foregoing, if the Spacecraft launch date defined
in Paragraph 7.1 is postponed by either Party due to an Excusable
Delay, as defined in Paragraph 12.1 herein, the terms of Article 12
herein shall govern such postponement.
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REDACTED
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 8. BUYER-FURNISHED ITEMS
---------------------
8.1 The following facilities, equipment, and services shall be furnished
by HCG at no cost to Contractor, in a timely manner, so as to enable
Contractor to perform the work herein in accordance with the
Spacecraft launch dates contained in Article 7 of this Contract.
1) Facilities (buildings, power, phones, data lines, etc.) and
services (transportation, storage, fueling, photo, X-ray special
test facility, etc.) and interface hardware at the Launch Site.
2) Reservation and procurement of the launch services and related
services.
Contractor will provide preliminary requirements of Item 1 above to
Buyer no later than 6 months after EDC to assist Buyer's compliance
with this Article. Prior to Buyer's definitization of a Launch
Services Contract with the Launch Services provider, Contractor will
be allowed to review the list of basic and optional service which
Buyer shall procure.
In the event that the Buyer-Furnished Items set forth above are not
suitable for the intended purpose or are not provided in a timely
manner, excluding any excusable delay as defined in Article 12 herein,
then HCG shall be liable to Contractor for all applicable costs which
shall include but not be limited to; support personnel standby; extra
travel expenses; transport termination or rescheduling fees; and
installation/de-installation of communication links to the Launch Site
and a profit rate of ************** or such other profit rate
designated in writing by the Chief Financial Officer of the ▇▇▇▇▇▇
Space and Telecommunications Company (or then existing equivalent) for
the applicable expenses.
8.2 Contractor shall maintain a system to ensure the adequate control and
protection of HCG's Property. For the purposes of this Article, HCG
Property shall be defined as any item which HCG provides to the
Contractor or directs Contractor to maintain in storage or an
inventory account under this Contract. Upon receipt of notification
from HCG, the
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Contractor shall complete and return within fifteen (15) working days
a Property System Certification describing the system that will be
used to control HCG's Property. Additionally, HCG's representative
may, at its option and at no additional cost to HCG, conduct
surveillance at a reasonable time of the Contractor's Property Control
System as HCG deems necessary to assure compliance with the terms and
conditions of this Article.
8.3 Contractor shall, commencing with its receipt and during its custody
or the use of any HCG's Property, accomplish the following:
A. Establish and maintain inventory records and make such records
available for review upon HCG's request;
B. Provide the necessary precautions to guard against damage from
handling and deterioration during storage;
C. Perform periodic inspection to assure adequacy of storage
conditions; and
D. Ensure that HCG's Property is used only for performing this
Contract, unless otherwise provided in this Article or approved
by the cognizant contracting officer.
8.4 Contractor shall not modify, add-on, or replace any HCG Property
without HCG's prior written authorization. Contractor shall
immediately report to HCG's contract representative the loss of any
HCG Property or any such property found damaged, malfunctioning, or
otherwise unsuitable for use. The Contractor shall determine and
report the probable cause and necessity for withholding such property
from use.
8.5 Upon termination or completion of this Contract, and upon request by
HCG, the Contractor shall perform a physical inventory, adequate for
accountability and disposition purposes, of all HCG's Property
applicable to such terminated or completed agreement and shall cause
its subcontractors and suppliers at every tier to do likewise.
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CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 9. INSPECTION AND ACCEPTANCE
-------------------------
9.1 Inspection of all Hardware, documentation and Contractor's services
provided hereunder shall take place in accordance with the terms of
Article 10, entitled "Access to Work in Process," herein.
9.2 Preliminary Acceptance of the Spacecraft shall occur when all in-plant
tests required to be performed by Contractor for the Hardware have
been completed and the Contractor has demonstrated at the pre-ship
review that the Hardware meets the requirements of Exhibit B, at which
time HCG shall accept the Hardware on a Preliminary basis in writing
within five (5) business days subject to completion of Launch Site
tests specified in Exhibit D, Galaxy IX Spacecraft Test Plan. If the
Hardware is unacceptable, Contractor shall promptly and at its
expense, rectify the unsatisfactory Hardware and resubmit the Hardware
for acceptance by HCG as provided above. In either case, the Hardware
shall be deemed accepted upon failure of HCG to notify Contractor
within the above five (5) business days that it is accepted or
rejected.
9.3 Final Acceptance of the Spacecraft shall occur upon i) the completion
of In-orbit Testing by HCG, or ii) forty-five (45) days after
Intentional Ignition (as defined in Paragraph 16.3 herein), or iii)
upon the Partial Failure, Total Failure or Total Constructive Failure
of the Spacecraft (as defined in the applicable HCG Galaxy IX Launch
Insurance Contract), whichever occurs first. HCG shall have access to
Launch Site test results during the launch campaign in accordance with
the provisions of Article 10, Paragraph 10.1 "Access to Work in
Process."
9.4 With respect to deliverable Hardware which HCG orders Contractor to
store, the Hardware shall be stored at a location to be negotiated and
Final Acceptance shall occur at the end of the ********** warranty
period as set forth in Article 16 herein, entitled "Spacecraft
Warranty", or such other event mutually agreed upon between the
Parties.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 10. ACCESS TO WORK IN PROCESS
-------------------------
10.1 Contractor shall afford HCG access to work in progress being
performed at Contractor's plants and at the Launch Site pursuant to
this Contract, including technical data, documentation, and hardware,
at reasonable times during the period of Contract performance,
provided such access does not unreasonably interfere with such work
or require the disclosure of Contractor's proprietary information to
third Parties.
10.2 To the extent that the Contractor's major subcontracts permit,
Contractor shall afford HCG access to work being performed pursuant
to this Contract in subcontractor's plants in the company of
Contractor's representatives.
Contractor shall exert reasonable effort in subcontracting to obtain
permission for HCG access to those major subcontractors' plants.
Major subcontracts are defined as those subcontracts in excess of
***********************.
10.3 HCG shall have the right to witness all Subsystem tests scheduled by
Contractor in connection with the performance of work under this
Contract.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 11. TERMINATION FOR DEFAULT
-----------------------
11.1 Subject to the provisions of Article 5, entitled "Price" and Article
12, entitled "Excusable Delays," HCG may issue a written Notice of
Default to Contractor if: i) Contractor fails **********
********** as confirmed by Seller's responsible Business Unit, and
HCG Management Review; or ii) if Contractor fails to make delivery of
the Goods, or to perform the Services, within the time specified or
any extension thereof. HCG may terminate the whole or any part of
this Contract if Contractor does not initiate action to cure such
failure within a period of ******* days (or such longer time as HCG
may authorize in writing) after receipt of notice from HCG specifying
such failure. HCG agrees that it will not terminate this Contract for
default so long as corrective action is being diligently pursued by
Contractor so as to provide reasonable assurance that the work
covered by this Contract shall be fully completed in sufficient time
to allow HCG to meet its launch date as specified in Article 7,
"Spacecraft Launch Date," of this Contract.
11.2 If HCG terminates this Contract in whole or in part, as provided in
Paragraph 11.1 herein, HCG, at it's sole option, shall either: i)
take title to all deliverable hardware, all hardware in process which
ultimately would have been deliverable by Contractor and all drawings
and data produced by Contractor, the cost of which has been charged
or becomes chargeable to any work terminated plus all reasonable
reprocurement costs up to a maximum amount of *****************
********************** or ii) receive a refund of ************
*************************************** and Contractor shall retain
title and possession to all terminated Hardware which ultimately
would have been deliverable by Contractor. Contractor shall continue
the performance of this Contract to the extent not terminated under
the provisions of this Article.
11.3 If, after termination of this Contract under the provisions of this
Article, it is determined for any reason that Contractor was not in
default under the provisions of this Article, or that the default was
excusable under the provision of Article 12 entitled "Excusable
Delays," the rights and
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obligations of the Parties shall be the same as if Notice of
Termination had been issued pursuant to Article 14, entitled
"Termination for Convenience."
11.4 Except as otherwise provided in the Contract, the rights and
remedies provided in this Article shall be in lieu of any other
rights and remedies provided by law or in equity in the event
Contractor fails to meet its obligations under this Contract.
In no event shall Contractor be liable for special, incidental
of consequential damages beyond those defined herein.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 12. EXCUSABLE DELAYS
----------------
12.1 If either Party or a subcontractor of either Party is delayed by act
of God, or of the public enemy, fire, flood, earthquake, epidemic,
quarantine restriction, strike, walkout, freight embargo, or any
other event which is beyond their control or does not arise from the
acts or omissions of either Party or its respective subcontractors,
said delay shall constitute an excusable delay. In the event of an
excusable delay, there shall be an equitable adjustment to the time
of delivery and/or performance stated in this Contract. The affected
Party shall give notice to the other Party within 10 working days
that an excusable delay condition exists after learning of such
delay. Such notification shall include the cause of the excusable
delay, the expected length of the excusable delay, and alternate
plans to mitigate the effect of the excusable delay.
12.2 If the affected Party, as defined in Paragraph 12.1 above, requests
or experiences, on a cumulative basis, excusable delay(s) greater
than **************** days, the Parties shall enter into good faith
negotiations to develop a mutual course of action and/or an equitable
adjustment to the affected terms of this Agreement.
12.3 Notwithstanding the foregoing, if the Launch Date defined in
Paragraph 7.1 herein is delayed due to an excusable delay affecting
either Party or a subcontractor thereof at any point in time after
the shipment of the Spacecraft to the Launch Site has occurred, HCG
shall reimburse Contractor for all reasonable expenses. Expenses
included in any equitable adjustment shall include but not be limited
to; support personnel standby; extra travel expenses; transport
termination or rescheduling fees; and installation/de-installation of
communication links to the Launch Site and a profit rate of
****************** or such other profit rate designated in writing by
the Chief Financial Officer of the ▇▇▇▇▇▇ Space and
Telecommunications Company (or then existing equivalent) for the
applicable excusable delay expenses.
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ARTICLE 13. AMENDMENTS
----------
The terms and provisions of this Contract shall not be amended or modified
without specific written provision to that effect, signed by the authorized
representatives of both Parties. No oral statement of any person shall in
any manner or degree modify or otherwise affect the terms and provisions of
this Contract.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 14. TERMINATION FOR CONVENIENCE
---------------------------
14.1 HCG may terminate all or any portion of the work to be performed
pursuant to this Contract upon five (5) days written notice to
Contractor. HCG shall pay Contractor, in the event of such
termination, termination liability equaling all costs expended by
Contractor for all work done up to the date of termination,
settlements with subcontractors for work performed prior to
termination, and Contractor's costs related to termination which would
not otherwise have been incurred plus a **** profit or such other
profit rate designated in writing by the Chief Financial Officer of
the ▇▇▇▇▇▇ Space and Telecommunications Company (or then existing
equivalent) for the applicable termination costs and charges less
amounts previously paid by HCG to Contractor pursuant to the Payment
Article. In no event shall the termination liability exceed the
Contract price defined in Article 4 herein.
14.2 In the event of termination by HCG hereunder, all tangible work in
process inventories generated under this Contract, with respect to the
terminated work, shall become the property of HCG. HCG shall direct
disposition of such property within sixty (60) days from date of
termination. Final acceptance and transfer of title for all tangible
work in process inventories to be delivered to the Buyer in the event
of termination shall be the subject of separate negotiations between
Buyer and Contractor. The expense of disposition shall be borne by
HCG.
14.3 In the event of partial termination, the Parties shall, by
negotiation, equitably re-price the unterminated goods and services,
and the Contract price shall be adjusted accordingly.
14.4 In the event that the Contractor identifies an alternate use (i.e.
sale to third Parties and/or internal utilization) for any Hardware
affected by a termination under this Article 14, the Contractor shall
submit a proposal to HCG, which, at a minimum, defines i) the
applicable Hardware; ii) the intended use of the Hardware; iii) the
original acquisition cost/value of the applicable Hardware, as
available; and iv) the sale/transfer payment(s) to be received by HCG.
HCG, at its sole option, may accept or reject the proposal submitted
by Contractor. In the event that HCG accepts the
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proposal submitted by Contractor, payment by Contractor to HCG of the
agreed upon payment value shall occur within thirty (30) days of the
sale/transfer of the applicable Hardware, or such other payment period
as mutually accepted between the Parties. If the Contractors proposal
is rejected by HCG, HCG shall retain Title to the applicable Hardware.
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ARTICLE 15. TITLE - RISK OF LOSS
--------------------
15.1 Title and risk of loss or damage in respect of all items to be
delivered under this Contract shall pass from Contractor to HCG as
follows:
1. Risk of loss of the Spacecraft and title shall pass from
Contractor to HCG upon; i) the completion of In-orbit Testing by
HCG; or ii) forty-five (45) days after Intentional Ignition (as
defined in Paragraph 16.3 herein); or iii) upon the Partial
Failure, Total Failure or Total Constructive Failure of the
Spacecraft, as defined in the applicable HCG Launch Insurance
Contract, whichever occurs first.
2. In respect to a Spacecraft which HCG directs Contractor to store,
title and risk of loss shall remain with the Contractor until
Final Acceptance as specified in Article 9.4 herein.
3. Notwithstanding Paragraph 15.1.2 above, upon removal of the
Spacecraft from storage, the Contractor shall not assume risk of
loss relative to a Battery which HCG directs Contractor to replace
after the five-year storage period which disqualifies the battery
for a 12-year mission. In that event, Article 29 herein entitled
"Effects of Storage on Batteries," shall apply.
15.2 In the event of damage to or destruction of Hardware when Contractor
shall have risk of loss, Contractor shall repair or replace (at
Contractor's option) said Hardware. The Buyer shall participate in
the decision to repair or replace said Hardware.
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CONFIDENTIAL TREATMENT REQUESTED
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The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 16. SPACECRAFT WARRANTY
-------------------
16.1 Contractor warrants that a Spacecraft, upon successful completion of
Spacecraft in-plant Tests pursuant to Article 9 herein, shall be free
from any defects in material or workmanship and shall conform to the
applicable specifications and drawings, as evidenced by acceptance
criteria, as defined in Exhibit D.
16.2 HCG shall have the right at any time during the period of this
warranty to reject any goods not conforming to this warranty and
require that Contractor, at its expense, correct or replace (at
Contractor's option) such goods with conforming goods. If Contractor
fails to correct or replace such defective goods and fails to initiate
reasonable efforts to correct or replace such defective goods within a
reasonable period after notification and authorization from HCG, HCG
may then, by contract or otherwise, correct or replace such defective
goods and equitably adjust the price.
16.3 This warranty shall start from the date of Preliminary Acceptance of a
Spacecraft as stated in Article 9 herein, entitled "Inspection and
Acceptance," and continue for a period of ************ or until the
Intentional Ignition (defined herein as the "Intentional Ignition of
any rocket motor on the first stage of the launch vehicle") of the
applicable launch vehicle, whichever is earlier. ********************
*********************************************************************
*********************************************************************
*********************************************************************
*********************************************************** Contractor
shall not be liable in Contract or in tort for any incidental,
special, contingent, or consequential damages.
16.4 Except as otherwise expressly agreed upon in this Contract, Contractor
shall have no liability, or responsibility in Contract or in tort with
respect to a Spacecraft after Intentional Ignition (as defined in
Paragraph 16.3) of the launch vehicle.
16.5 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING FITNESS FOR PARTICULAR
-22-
REDACTED
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
PURPOSE OR MERCHANTABILITY AND THE REMEDY PROVIDED HEREIN IS THE SOLE
REMEDY FOR FAILURE BY CONTRACTOR TO FURNISH A SATELLITE THAT IS FREE
FROM MATERIAL DEFECTS IN MATERIAL OR WORKMANSHIP AS SET FORTH IN
PARAGRAPH 16.1 ABOVE. ALL OTHER WARRANTIES OR CONDITIONS IMPLIED BY
ANY OTHER STATUTORY ENACTMENT OR RULE OF LAW WHATSOEVER ARE EXPRESSLY
EXCLUDED AND DISCLAIMED. CONTRACTOR AND ITS SUBCONTRACTORS SHALL HAVE
NO LIABILITY IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) OR IN ANY
OTHER MANNER WHATSOEVER FOR THE SATELLITE AFTER INTENTIONAL IGNITION
OTHER THAN AS EXPRESSLY PROVIDED IN THIS CONTRACT. IN NO EVENT SHALL
CONTRACTOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR
PROFITS), EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. THIS
PARAGRAPH 16.5 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
CONTRACT FOR WHATEVER CAUSE.
16.6 Any limitations on warranties, liability or requests for
indemnification from liability for the malfunction of delivered items
which are imposed upon the Contractor by its various equipment
suppliers shall be passed on directly to Buyer provided, however,
nothing therein shall decrease or invalidate the warranty time period
as stated herein.
-23-
ARTICLE 17. INDEMNIFICATION
---------------
17.1 Each Party shall indemnify and hold the other and/or all its
officers, agents, servants, subsidiaries, and employees, or any of
them, harmless from any liability or expense in connection herewith
on account of damage to property (excepting Spacecraft in flight) and
injuries, including death, to all persons including but not limited
to employees of the Parties, and their subcontractors, and of all
other persons performing any part of the work hereunder, arising from
any occurrence caused by an negligent act or omission of the
indemnifying Party or its subcontractors, or any of them in
connection with the work to be performed by such Party under this
Contract. The indemnifying Party shall have the right, but not the
obligation, to participate in any legal or other proceedings
concerning claims for which it is indemnifying under this Article 17
and to direct the defense of such claims. However, with respect to
such legal or other proceedings, the indemnifying Party shall pay all
expenses (including attorneys fees incurred by the indemnified Party
in connection with such legal or other proceedings) and satisfy all
judgments, costs or other awards which may be incurred by or rendered
against the indemnified Party. The indemnifying Party shall not
settle any such claim, legal or other proceeding without first giving
thirty (30) days prior written notice of the Terms and Conditions of
such settlement and obtaining the consent of the indemnified Party,
which consent shall not be unreasonably withheld or delayed.
17.2 Notwithstanding the foregoing, neither the Contractor nor its
subcontractors shall have any liability in contract or in tort, for
damages to or caused by the Spacecraft after Intentional Ignition (as
defined in Paragraph 16.3), and Buyer shall obtain waivers of
subrogation rights from Buyer's insurers against Contractor, and
affiliates and subcontractors of Contractor.
17.3 In no event shall the Contractor or Buyer be liable for any
incidental, special, contingent or consequential damages (including,
but not limited to lost profits).
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REDACTED
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 18. SPACECRAFT NOT LAUNCHED WITHIN SIX MONTHS AFTER ACCEPTANCE
----------------------------------------------------------
18.1 If the Spacecraft is not launched within six (6) months after its
Preliminary Acceptance per Article 9, entitled "Inspection and
Acceptance," and is subsequently ordered to be launched within one
(1) year following its Preliminary Acceptance, it is agreed that such
Spacecraft shall be returned at Contractor's option at Contractor's
expense, to Contractor's facility for inspection and refurbishment.
Any inspection and refurbishment undertaken by Contractor to meet the
requirements of Article 16 entitled, "Spacecraft Warranty," shall be
at Contractor's expense, including Spacecraft transit insurance.
18.2 If the Spacecraft is not launched within six (6) months after its
Preliminary Acceptance and is subsequently ordered to be launched
later than one (1) year following its Preliminary Acceptance, it is
agreed that such Spacecraft shall be returned, at HCG's expense, to
Contractor's facility for inspection and refurbishment. An equitable
adjustment to Contract price for such inspection and refurbishment,
to include a ****** profit rate (or such other profit rate designated
in writing by the Chief Financial Officer of the ▇▇▇▇▇▇ Space and
Telecommunications Company (or then existing equivalent) for the
applicable expenses) shall be negotiated by the Parties unless the
fact that the launch is scheduled for later than one (1) year is due
to Contractor's negligent acts or omissions.
18.3 If the Spacecraft is returned to Contractor's facility for inspection
and refurbishment per the terms of Paragraph 18.2 above, all charges
to return such Spacecraft to the Launch Site shall be borne by HCG.
18.4 If the Spacecraft has not been launched within five (5) years after
its preliminary Acceptance, neither Party shall be further obligated
to the other with respect to such Spacecraft. Disposition of such
Spacecraft shall be at the option of HCG with costs of such
disposition to be borne by HCG.
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REDACTED
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 19. PATENT/COPYRIGHT INDEMNITY
--------------------------
19.1 Contractor shall indemnify and hold HCG harmless against any
liability or expense as a result of claims, actions, or proceedings
against HCG alleging the infringement of any United States Letters
Patent, or copyright of any data, or article fabricated by Contractor
and delivered to HCG pursuant to this Contract as set forth below.
19.2 Contractor agrees to defend at its own expense any request for
royalty payments or any claim for equitable relief or damages against
HCG, its officers, employees, agents, or subsidiaries based on an
allegation that the manufacture of any item under this Contract or
the use, lease, or sale thereof infringes any United States Letters
Patent, and to pay any royalties and other costs related to the
settlement of such request and to pay the costs and damages,
including reasonable attorney's fees finally awarded as the result of
any suit based on such claim, provided that Contractor is given
prompt written notice of such request or claim by HCG and given
authority and such assistance and information as is available to HCG
for resisting such request or for the defense of such claim. Any
such assistance or information which is furnished by HCG at the
written request of Contractor is to be at Contractor's expense.
19.3 In the event that, as a result of any such suit: a) prior to
delivery, the manufacture of any item is enjoined; or b) after
delivery, the use, lease or sale thereof is enjoined, Contractor
agrees to utilize its best effort to either: (1) negotiate a license
or other agreement with plaintiff so that such item is no longer
infringing; or (2) modify such item suitably or substitute a suitable
item therefore, which modified or substituted item is not subject to
such injunction, and to extend the provisions of this
Article thereto. In the event that neither of the foregoing
alternatives is suitably accomplished by Contractor, Contractor shall
be liable to HCG for HCG's additional costs and damages arising as a
result of such injunction; provided however, that in no event shall
Contractor's entire liability under this Article exceed
******************.
-26-
19.4 The foregoing indemnity shall not apply to any infringement resulting
from a modification or addition, by other than Contractor, to an item
after delivery.
-27-
ARTICLE 20. INTELLECTUAL PROPERTY RIGHTS
----------------------------
Neither Party shall acquire any rights with respect to any patent,
trademark, trade secret, or any other intellectual property developed or
used by the other Party in the performance of this Contract.
-28-
ARTICLE 21. FURNISHED DATA AND INFORMATION, DISCLOSURE AND USE
--------------------------------------------------
Proprietary Information shall mean any data and information received by one
Party from the other Party, which is identified as proprietary in
accordance with either of the following methods: If in writing, it shall
be marked by the disclosing Party with an appropriate proprietary legend.
If disclosed orally, it shall be presented by the disclosing Party as
Proprietary at the time of disclosure and shall be confirmed by the
disclosing Party as Proprietary Information in writing within fifteen (15)
days of its initial oral disclosure.
21.1 The receiving Party agrees to protect such data and information with
the same degree of care which the receiving Party uses to protect its
own confidential data and information;
21.2 The receiving Party shall not disclose or have disclosed to third
Parties, in any manner or form, or otherwise publish such data and
information so long as it remains proprietary without the explicit
authorization of the other Party;
21.3 The receiving Party agrees that it shall use such data and
information solely in connection with the performance of Work under
this Contract, unless otherwise explicitly authorized by or on behalf
of the other Party with the designation of specific data and
information and use;
21.4 The foregoing obligations with regard to such data and information
shall exist unless and until such time as:
21.4.1 Such data and information are to the receiving Party or
otherwise publicly available prior to its receipt by the
receiving Party without the default of the receiving Party; or
21.4.2 Such data and information have been lawfully disclosed to the
receiving Party by a Third Party which has the right to
disclose such data; or
-29-
21.4.3 Such data and information are shown by written record to have
been independently developed by the receiving Party; or
21.4.4 Such data and information are otherwise available in the
public domain without breach of this Contract by the receiving
Party; or
21.4.5 Such data and information are disclosed by or with the
permission of the disclosing Party to a Third Party without
restriction; or
21.4.6 Such data and information are released for disclosure in
writing by or with the permission of the disclosing Party.
21.5 Providing HCG shall obtain from its customer(s), a nondisclosure
agreement at least as restrictive as this Article 21 and furnishes a
copy thereof to Contractor, HCG may disclose any proprietary
information to its customer(s) which shall be necessary for HCG and
its affiliates to meet its contractual commitments with its
customer(s).
21.6 Any copyrighted material belonging to a Party to this Contract may be
copied by the other Party as necessary to enable the receiving Party
to perform its obligations under this Contract, provided always that
the copyright legend is retained on the material.
-30-
ARTICLE 22. PUBLIC RELEASE OF INFORMATION
-----------------------------
Neither Party shall issue news releases, articles, brochures,
advertisements, prepared speeches, and other information releases
concerning the work performed or to be performed under this Contract by
Contractor or its subcontractors, or any employee or consultant of either,
without first obtaining the prior written approval of the other Party
concerning the content and timing of such release which approval shall not
be unreasonably withheld. The initiating Party shall provide such releases
to the other Party for review within a reasonable time prior to the desired
release date.
-31-
ARTICLE 23. TAXES
-----
The price which shall be paid by HCG for the goods and services provided
under this Contract does not include any State or local sales or use taxes,
or fees or other taxes against real or personal property, however
designated, which may be levied or assessed against Contractor. With
respect to such taxes, HCG shall either furnish Contractor with an
appropriate exemption certificate applicable thereto or pay Contractor,
upon timely presentation of invoices therefor, such amounts thereof as
Contractor may by law be required to collect or pay. HCG shall be
responsible for the payment of all personal property taxes, if any, with
regard to goods which are levied upon subsequent to the date of delivery to
HCG.
In the event Contractor, in the performance of this Contract is required
to pay customs, import duties, fees, value-added or sales taxes, work
permit or residence permit fees, commercial card fees, or other charges or
taxes, however designated, HCG will reimburse Contractor for such expenses
within thirty (30) days of written notification by Contractor of payment,
which notification shall then be supported by an invoice and attachment(s)
evidencing such payment having been made by Contractor.
-32-
ARTICLE 24. GOVERNING LAW
-------------
This Contract shall be deemed made in the State of California and shall be
construed in accordance with the laws of the State of California.
-33-
ARTICLE 25. TITLES
------
Titles given to the Articles herein are inserted only for convenience and
are in no way to be construed as part of this Contract or as a limitation
of the scope of the particular article to which the title refers.
-34-
ARTICLE 26. NOTICES
-------
Any notice or request required or desired to be given or made hereunder
shall be in writing and shall be effective if delivered in person or sent
by mail or by facsimile as indicated below:
1. ▇▇▇▇▇▇ Communications Galaxy Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇. ▇▇▇, M/S D467
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Contracts Negotiator
cc: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Director, Systems Engineering &
Technology.
2. ▇▇▇▇▇▇ Aircraft Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇. ▇▇▇, M/S D545
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Bay, Contracts Manager
cc: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Business Manager
-35-
ARTICLE 27. INTEGRATION
-----------
This document, with Exhibits, constitutes the entire understanding between
the Parties hereto with respect to the subject matter hereof and supersedes
all previous negotiations, commitments, and understandings with regard to
such subject matter.
-36-
ARTICLE 28. CHANGES
-------
Between the Effective Date of Contract and completion of performance under this
Contract, Buyer shall have the right to make changes within the general scope of
this Contract in drawings, designs, specifications, method of shipment or
packing, or change the place of delivery, require additional work, or direct the
omission of work. Any such changes must be made in writing and must be signed by
HCG's Authorized Representative. If any such change causes an increase or
decrease in the cost of, or the time required for, the performance of this
Contract, or otherwise affects any other provision of this Contract, an
equitable adjustment to be negotiated in good faith shall be made in the price,
or delivery date or schedule, or both, and such other terms as may be affected,
and this Contract shall be amended in accordance with Article 13 entitled
"Amendments," herein. If the cost of supplies or materials made obsolete or
excess as a result of a change is included in Contractor's claim for adjustment,
HCG shall have the right to prescribe the manner of disposition of such supplies
or materials. Nothing in this Article shall excuse Contractor from promptly
proceeding with the Contract as changed.
-37-
CONFIDENTIAL TREATMENT REQUESTED
--------------------------------
REDACTED The asterisked portions of this
document have been omitted and
are filed separately with the
Securities and Exchange
Commission
ARTICLE 29. EFFECTS OF STORAGE ON BATTERIES
-------------------------------
For Spacecraft batteries to provide the required minimum twelve (12) years
of in-orbit services per Exhibit B, Galaxy IX Spacecraft Specification, it
is understood that launch must occur within five (5) years from the date of
activation of the first battery cell. In the event Buyer directs Contractor
to store any deliverable Spacecraft and the period of such storage causes a
launch later than five (5) years from the date of activation of that
Spacecraft's first battery cell and HCG directs Contractor to install
replacement batteries to meet twelve (12) year in-orbit service
requirement, then HCG shall pay Contractor its costs plus a **** profit
rate or such other profit rate designated in writing by the Chief Financial
Officer of the ▇▇▇▇▇▇ Space and Telecommunications Company (or then
existing equivalent) for the applicable expenses for replacing batteries
per Buyer's direction.
-38-
ARTICLE 30. INTER-PARTY WAIVER OF LIABILITY
-------------------------------
30.1 Prior to the time HCG and the Contractor enter the premises at the
Launch Site, they each agree that they will not make a claim against
each other for damage to, loss of, or loss of use of their property or
the property of others in their possession, caused by the fault of
negligence of the other Party to this Contract, or otherwise caused by
any defect in any product manufactured or sold by the other Party to
this Contract. Such claims are waived and each Party will bear its
own losses. HCG will include a comparable clause in each of its
contracts with vendors, subcontractors or customers for services or
benefits expected as a result of the launch or orbiting of Galaxy
Follow-on satellites. Such comparable clause shall include a
requirement to flow the clause down to lower-tier contractors.
30.2 Notwithstanding any other provisions of this Contract, prior to the
time any Party, associated with the Galaxy IX launch activities at the
Launch Site, shall enter the premises at the Launch Site, such Parties
shall be required to sign an Inter-Party Waiver of Liability
consistent with that between HCG and the Contractor as incorporated
herein under Paragraph 30.1 of this provision or other similar
agreement as may be required by the launch agency. Each Party shall
have the responsibility to assure that all the Parties associated with
the launch of Galaxy IX Spacecraft (for which they have control or
privity of Contract with hereunder) have executed said Inter-Party
Waiver of Liability.
-39-
ARTICLE 31. SPACECRAFT STORAGE
------------------
31.1 Buyer may, at its option, order Contractor to store, in accordance
with the provisions of Exhibit B Galaxy IX Spacecraft Specification,
the deliverable Spacecraft (including separate storage of Batteries,
if needed) for a period of up to 1 year from the date of their
delivery to Buyer. HCG shall provide written notice to the Contractor
not later than six (6) months prior to the scheduled delivery of said
Spacecraft. Contractor's price for providing storage, including
insurance and transportation to storage, shall be provided to Buyer
within 30 days after receipt of Buyer's notice to store such
Spacecraft and Contractor shall provide storage facilities. If such
storage facilities are unavailable, Contractor and Buyer shall hold
discussions to determine a mutually agreed storage arrangement.
31.2 Six (6) months prior to a stored Spacecraft's scheduled launch date,
Buyer shall, by notice in writing, order the Contractor to remove said
Spacecraft from storage and ship it to a Launch Site designated by
Buyer. The cost for storage and additional transportation costs
exceeding that required to transport the satellite(s) to the FOB point
specified herein, shall be borne by Buyer. These will be in addition
to any charges which become the obligation of the Buyer per Article 18
herein entitled "Spacecraft Not Launched Within Six Months After
Acceptance."
31.3 Included in Contractor's price to be provided to HCG per Paragraph
31.1 above shall be a price for the Contractor providing HCG the
appropriate level of suggested maintenance of the stored Spacecraft
for a period of up to one (1) year of storage. Contractor shall be
responsible for risk of loss or damage to stored Spacecraft and
associated batteries during the storage period.
-40-
ARTICLE 32. DISPUTES
--------
32.1 Disputes
32.1.1 In the event any dispute arises between the Contractor and the
Buyer relating to this Contract, either Party may give written
notice to the other of its objections and reasons therefore.
The Contractor's Program Manager shall consult with HCG's
Spacecraft Acquisition Manager in an effort to reach a mutual
agreement to resolve such dispute. In the event mutual
agreement cannot be reached within fifteen (15) days after
receipt of this notice, the respective positions of the
Parties shall be forwarded to the Contractor's Business Unit
Leader and HCG's President for discussions and attempt to
reach mutual agreement to resolve such dispute within another
fifteen (15) day period.
32.1.2 In the event mutual agreement cannot be reached within the
time period defined in Paragraph 32.1.1 above, the positions
of the Parties shall be forwarded to the Contractor's and
Buyer's Sector Executive Office. If mutual agreement cannot be
reached, such dispute may be referred on the application of
either Party for final determination to an arbitration
tribunal convened in accordance with the American Arbitration
Association rules for commercial arbitration.
32.2 Arbitration of Disputes
32.2.1 Any dispute, disagreement, controversy or claim arising out of
or relating to this Contract or the interpretation thereof or
any arrangements relating thereto, or the validity or
enforceability thereof, or contemplated therein or the breach,
termination or invalidity thereof which is not settled to the
mutual satisfaction of the Parties in accordance with
Paragraph 32.1 above, shall be settled exclusively and finally
by arbitration.
32.2.2 The arbitration shall be in accordance with the rules of the
-41-
American Arbitration Association Commercial Arbitration Rules
(the "Rules").
32.2.3 The place of arbitration shall be in Los Angeles, California,
U.S.A.
-42-
ARTICLE 33. APOGEE ROCKET MOTOR INDEMNIFICATION
-----------------------------------
HCG shall indemnify and hold harmless the Contractor and Thiokol
Corporation and their officers, directors, agents, subsidiaries and
employees from liabilities, losses and damages, including costs and
expenses and damages incurred by the Contractor in defending or assisting
HCG in its defense against any and all claims for damages including without
limitation any such claims for damages, destruction, loss or loss of use of
property, or for any bodily injury or death caused by or arising out of
use, transportation, handling, testing, or storage of the Spacecraft Apogee
kick rocket motor delivered under subcontract to the Contractor after final
inspection and acceptance of said motor under the subcontract. The
Contractor's sole responsibility for damage to, loss of, or loss of use of
aircraft products, missiles, Spacecraft or other property related to said
rocket motor, including consequential damages, shall be as prescribed in
the provisions entitled "Article 16, Spacecraft Warranty."
-43-
ARTICLE 34. ASSIGNMENT
----------
33.1 Neither Party shall assign, or transfer this Contract or any of its rights,
duties or obligations thereunder to any person or entity, in whole or part
without the prior written consent of the other Party except that either
Party may assign or transfer any of its rights, duties or obligations under
this Contract, either in whole or in part, to its parent company or a
subsidiary in which the assigning Party has a controlling interest thereof.
Neither Party shall unreasonably withhold consent to any assignment or
transfer providing that the requesting Party can demonstrate to the other
Party's satisfaction that:
(1) its successor or assignee possesses the financial resources to fulfill
the obligations of this Contract; and
(2) any such assignment or transfer shall not jeopardize any data rights
or competitive position, or violate laws related to export or
technology transfer, or otherwise increase the other Party's risks or
obligations.
If the requesting Party cannot so demonstrate, both Parties agree to
negotiate in good faith suitable modifications and new provisions to this
Contract which would mitigate the above risks and/or bring this Contract
into conformance with applicable laws.
33.3 The Parties agree that in the event that the ownership or control of HCG is
changed, HSC reserves the right to negotiate in good faith suitable
modifications and new provisions to this Contract which would mitigate any
additional risks, financial or otherwise, to HSC which may be brought about
by such change in ownership or control.
33.4 This Contract shall be binding upon the Parties hereto and their successors
and permitted assigns.
-44-
ARTICLE 35. EFFECTIVE DATE OF CONTRACT
--------------------------
The effective date of this Contract No. 95-HCG-001 shall be 09 November 1994.
IN WITNESS WHEREOF, the Parties hereto have executed this Contract No. 95-HCG-
001 to become effective upon the date specified in this Article 35, herein
entitled, "Effective Date of Contract."
▇▇▇▇▇▇ AIRCRAFT COMPANY ACTING THROUGH ITS ▇▇▇▇▇▇ SPACE & COMMUNICATIONS
------------------------------------------------------------------------
COMPANY.
--------
SIGNATURE: /s/ ▇▇▇▇▇▇▇ Bay
------------------------------
NAME: ▇▇▇▇▇▇▇ Bay
-----------------------------------
TITLE: Contracts Manager
----------------------------------
DATE: 9 August 1995
-----------------------------------
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC.
----------------------------------
SIGNATURE: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
TITLE: Vice President
----------------------------------
DATE: August 4, 1995
-----------------------------------
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