COMMERCIAL-IN-CONFIDENCE
ORION 2 SPACECRAFT
PURCHASE CONTRACT
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ORION 2 SPACECRAFT PURCHASE CONTRACT
PART 1(A)
ORION 2 PRICING, TERMS AND CONDITIONS
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TABLE OF CONTENTS
WHEREAS........................................................................1
DEFINITIONS....................................................................1
1. ORION 2 CONTRACT...........................................................11
2. ENTIRE AGREEMENT, EFFECTIVE DATE...........................................12
3. SCOPE OF THE WORK..........................................................12
4. RESERVED...................................................................13
5. CONTRACT PRICE.............................................................14
6. PAYMENT....................................................................15
7. ACCESS TO WORK.............................................................19
8. DELIVERABLE ITEMS AND DELIVERY DATES.......................................22
9. FINAL ACCEPTANCE...........................................................23
10. TRANSFER OF TITLE AND ASSUMPTION OF RISK..................................28
11. ORION 2 SPACECRAFT DELIVERY INCENTIVE AND LATE
DELIVERY LIQUIDATED DAMAGES...................................................28
12. EXTENSIONS FOR EXCUSABLE DELAYS...........................................29
13. CORRECTION OF DEFECTS.....................................................31
14. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY
AND INTER-PARTY WAIVER OF LIABILITY..........................................34
15. ORION 2 SPACECRAFT IN-ORBIT PERFORMANCE WARRANTY..........................36
16. SUBCONTRACTS..............................................................40
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17. INDEMNIFICATION...........................................................41
18. INSURANCE.................................................................43
19. REPLACEMENT SATELLITE.....................................................46
20. TERMINATION FOR CONVENIENCE...............................................49
21. REMEDIES FOR DEFAULT......................................................50
22. TERMINATION IN SPECIAL CASES..............................................55
23. PUBLICATION OF INFORMATION................................................56
24. CONFIDENTIALITY AND NONDISCLOSURE
OF PROPRIETARY INFORMATION...................................................57
25. LICENSE RIGHTS............................................................59
26. PATENTS, TRADEMARKS AND COPYRIGHTS........................................60
27. ORION 2 CONTRACT AMENDMENTS...............................................61
28. GOVERNMENTAL APPROVALS....................................................62
29. RESPONSIBILITY FOR THE CONTRACT...........................................63
30. DISPUTE RESOLUTION........................................................64
31. CONTRACT MANAGEMENT.......................................................66
32. SECURITY INTEREST AND FINANCIAL INFORMATION...............................67
33. ASSIGNMENT................................................................67
34. NOTICES AND DOCUMENTATION.................................................68
35. SEVERABILITY AND WAIVER...................................................70
36. COMPLIANCE WITH THE LAW, PERMITS AND LICENSES.............................70
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37. APPLICABLE LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR ACCEPTANCE OF SERVICE; INTERPRETATION AND LANGUAGE................71
38. SURVIVAL..................................................................72
39. KEY PERSONNEL.............................................................72
40. PROGRESS REPORTS..........................................................73
41. LAUNCH VEHICLE AGENCY.....................................................73
42. GUARANTEE OF CONTRACTOR OBLIGATIONS.......................................74
43. INTEREST..................................................................75
44. COUNTERPARTS..............................................................75
COMMERCIAL-IN-CONFIDENCE
ORION 2 SPACECRAFT PURCHASE CONTRACT
PART 1(A) ORION 2 PRICING, TERMS and CONDITIONS
THIS ORION 2 SPACECRAFT PURCHASE CONTRACT (referred to herein as the "ORION 2
Contract") is made as of the 29th day of January 1997, between INTERNATIONAL
PRIVATE SATELLITE PARTNERS, L.P., d/b/a ORION ATLANTIC, L.P., a Delaware limited
partnership with its principal offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (hereinafter called
"ORION"), and MATRA MARCONI SPACE UK LIMITED, a company organized and existing
under the Laws of England and Wales with its registered office at The Grove,
▇▇▇▇▇▇ ▇▇▇▇, Stanmore, Middlesex, HA7 4LY, ENGLAND (hereinafter called the
"Contractor").
WHEREAS
A. The primary object of ORION is the carrying on of the business of
providing a telecommunications system by the use of space satellites.
B. ORION anticipates providing the business referred to in recital A
through the ORION satellite ("ORIONSAT") system.
C. The ORION 2 Spacecraft to be constructed pursuant to this ORION 2
Contract is intended to form part of the space segment of the ORIONSAT
system.
▇. ▇▇▇▇▇ and the Contractor have agreed that the Contractor will perform
the work as defined below and that ▇▇▇▇▇ will pay for the Work on the
terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the mutual covenants
and agreements contained herein, the parties hereto (hereinafter, the "Parties")
agree as follows:
DEFINITIONS
"Advance Funding" means the funding requirements for
Long-Lead Items related to the
Replacement Satellite, as set
forth in Article 19.2 hereof.
"Affiliate" means, with respect to any entity,
any other entity Controlling,
Controlled by or under common
Control with such entity.
"Aggregate Predicted Transponder Life" means
the sum of the Predicted
Transponder Life of each and every
Serviceable Transponder embodied
in the Launched ORION 2 Spacecraft
and represents a projection of the
revenue-earning capacity of the
Launched ORION 2 Spacecraft.
"Amendment to the ORION 2 Contract" means a written agreement
modifying the ORION 2 Contract,
which agreement is signed on
behalf of ORION by its President
(or another person designated by
the President in writing to sign
such agreement) and on behalf of
the Contractor by both its
respective Contracts Manager and
Project Manager, and which
agreement expressly states that it
is an "Amendment to the ORION 2
Contract."
"Business Day" means any day other than the
following: a Saturday, Sunday or
other day on which banks are
authorized to be closed in the
State of New York or London,
England.
"Calendar Day" means any day.
"Constructive Total Loss" means, with respect to the ORION 2
Spacecraft, that either of the
following conditions (A or B)
applies: (A) (i) the Aggregate
Predicted Transponder Life is less
than __________________________,
or (ii) fewer than _______________
downlink Transponders are
Serviceable Transponders, or (iii)
fewer than____________ downlink
Transponders with ______ at the
________ GHz frequency and _______
at either of the two frequency
ranges of _________ or _________
GHz frequency are Serviceable
Transponders; or (B) (i) the ORION
2 Spacecraft fails to arrive at
its designated orbital location or
the Contractor fails to deliver
the In-Orbit Acceptance Report
within one hundred and eighty
(180) Calendar Days after Launch,
or (ii) the ORION 2 Spacecraft is
completely destroyed or is
otherwise rendered incapable of
operation.
"Consultant" means any third party (i)
authorized by ▇▇▇▇▇ to provide
technical and program support and
assistance in connection with the
performance of the ORION 2
Contract, or (ii) which is a
representative of or consultant to
any Financing Entity.
"Contract Price" means the firm fixed price of Two
Hundred Million, Eight Hundred
Thirty Thousand Dollars
($200,830,000) as such may be
adjusted in accordance with the
terms of the ORION 2 Contract.
"Control," "Controlling," or "Controlled" means with regard to any entity
the legal, beneficial or equitable
ownership, directly or indirectly,
of fifty (50) percent or more of
the capital stock (or other
ownership interest, if not a
corporation) of such entity
ordinarily having voting rights.
"Correction Plan" means a plan submitted by the
Contractor which details how the
Contractor shall correct (i) a
failure to make adequate progress
towards completion of any Work or
(ii) a default or breach under the
ORION 2 Contract in accordance
with Article 21.
"Data and Documentation" means that data and documentation
to be supplied by the Contractor
to ORION pursuant to the
requirements of Part 2(A)
(Statement of Work) and as
specified in Part 2(B) (ORION 2
Contract Documentation
Requirements List).
"Defect" means (i) with regard to the ORION
2 Spacecraft and all components
thereof, any defect in design,
material or workmanship, or
failure to perform in accordance
with the specifications and
requirements set out or referred
to in the ORION 2 Contract and the
Data and Documentation delivered
from time to time under the ORION
2 Contract which ORION or its
Consultant reasonably believes may
adversely affect the ORION 2
Spacecraft performance; (ii) with
regard to services, a failure to
conform to a high standard
consistent with industry practice;
and (iii) with regard to Data and
Documentation, a failure to meet
any specifications or requirements
set forth in the ORION 2 Contract.
"Deliverable Item" means the ORION 2 Spacecraft and
Data and Documentation and other
items so identified in subsequent
amendments to the ORION 2
Contract. Where the context
permits, as used herein the term
"Deliverable Items" shall include
and refer not only to the whole of
the items listed in Article 8, but
also every component part thereof.
"Delivery" shall have the meaning ascribed to
it in Article 8.1.
"Delivery Dates" means those dates set forth in
Article 8.1.
"Demand" means, in the context of Article
21 hereof, a demand by ▇▇▇▇▇ made
of the Contractor for the
Contractor to provide a Correction
Plan in the event that the
Contractor is failing to make
adequate progress in the
performance of the ORION 2
Contract or is in default or
breach.
"Dollars" shall mean United States Dollars.
"Excusable Delay" shall have the meaning ascribed to
it in Article 12.
"F1 Contract" means the Second Amended and
Restated Purchase Contract for the
F1 Spacecraft between Orion
Atlantic, L.P. and MMS Space
Systems Limited (formerly known as
British Aerospace Space Systems
Limited), as assignee of British
Aerospace Public Limited Company,
dated 26 September 1991, as
amended.
"Final Acceptance" shall have the meaning ascribed to
it in Article 9.
"Financing Agreements" means any and all documents and
agreements evidencing and/or
securing monies provided on a full
or partial debt basis by any
Financing Entity to ORION to fund
the construction and delivery of
the ORION 2 Spacecraft and the
purchase of Long-Lead Items.
"Financing Entity" means any entity (other than the
Contractor or parties related to
the Contractor), e.g., commercial
bank, merchant bank, investment
bank, commercial finance
organization, corporation, or
partnership, providing money on a
full or partial debt basis to
ORION to fund the construction and
delivery of the ORION 2 Spacecraft
and purchase of Long-Lead Items.
"Initial Incentive Amount" means
_____________________________
__________________________________
of the Total Amount at Risk, as
may be adjusted in accordance with
the terms of the ORION 2 Contract.
"In-Orbit Acceptance Requirements" means that document which is Part
3(D) of the ORION 2 Contract.
"In-Orbit Acceptance Test Plan" means that
document which is a Deliverable
Item under Part 2(B) (ORION 2
Contract Documentation
Requirements List) and as
described in Part 3(D) (In-Orbit
Commissioning and Acceptance Test
Requirements) of the ORION 2
Contract.
"In-Orbit Acceptance Test Report" or means that document which is a
"In-Orbit Acceptance Report" Deliverable Item under Part 2(B)
(ORION 2 Contract Documentation
Requirements List) and as
described in Parts 2(A) (Statement
of Work) and 3(D) (In-Orbit
Commissioning and Acceptance Test
Requirements) of the ORION 2
Contract.
"In-Orbit Performance Warranty" shall mean the Contractor's
warranty as to the performance of
the ORION 2 Spacecraft following
Final Acceptance.
"In-Orbit Performance Warranty Period" shall have the meaning ascribed to
it in Article 15.2.
"Insurers" means those entities providing
Launch Insurance.
"Intentional Ignition" means, with respect to the Launch
Vehicle, the point in time during
the launch countdown when
initiation of the gas generators
igniters firing command and firing
of any of the gas generators
igniters occurs.
"Key Personnel" shall have the meaning ascribed to
it in Article 39.
"Launch" means Intentional Ignition,
followed by (i) release of the
Launch Vehicle from the launcher
hold down restraints for purposes
of lift-off, or (ii) a
Constructive Total Loss.
"Launch Agreement" means the agreement between the
Contractor and the Launch Vehicle
Agency to perform the Launch of
the ORION 2 Spacecraft.
"Launch Damaged Transponders" shall have the meaning ascribed to
it in Article 15.2.2.
"Launch Date" means the calendar date within the
Launch Period during which the
Launch is scheduled to occur.
"Launch Insurance" means insurance which covers the ORION 2
Spacecraft from the period
beginning at Intentional Ignition
and ending no sooner than one
hundred eighty (180) Calendar Days
following Launch.
"Launch Period" means the period 1 May 1999
through 31 July 1999, as such
period may be adjusted by
agreement of the Parties, during
which the Launch is scheduled to
occur.
"Launch Services" shall mean the launch
campaign/transportation, launch
services, mission planning and
launch/early operations phase
services as more particularly
described in Section 7 of Part
2(A).
"Launch Slot" means the 30 day period during
which the Launch is scheduled to
occur as set forth in the Launch
Agreement, which period will be
determined within seven days of
the Launch Vehicle Agency's
receipt of Progress Payment No. 6.
"Launch Vehicle" means an Atlas IIAS Standard
launch vehicle system (with such
customization as may be agreed
separately between the Launch
Vehicle Agency and ORION)
consisting of an Atlas lower stage
and Centaur upper stage connected
by an interstage adapter, the
payload fairing, and the payload
adapter with separation system.
"Launch Vehicle Agency" means Lockheed ▇▇▇▇▇▇ or such
other Subcontractor as is selected
to supply the Launch Vehicle for
the ORION 2 Spacecraft.
"Launched ORION 2 Spacecraft" means the ORION 2 Spacecraft after
its Launch.
"Long-Lead Items" means those satellite components
purchased by the Contractor
pursuant to Article 19.
"Major Subcontract" means a Subcontract which is of a
value exceeding Two Million, Five
Hundred Thousand Dollars
($2,500,000 ) or of importance or
critical in nature to the overall
program (e.g., a Subcontract for
major or critical units,
subsystems or other items or
services).
"Maneuver Lifetime" shall have the meaning ascribed to
it in Article 3.4.
"Milestone" means completion of a portion of
the Work with respect to which a
payment is to be made in
accordance with the Milestone
Payment Plan incorporated in Part
1(B) (ORION 2 Payment Plans and
Termination Liability Amounts) of
the ORION 2 Contract.
"Milestone Payments" means those payments listed as
Milestone Payments in Part 1(B)
(ORION 2 Payment Plans and
Termination Liability Amounts) of
the ORION 2 Contract.
"Mission Specific Hardware and Software" means those items of hardware and
software described in Section 10
of Part 2(A) (Statement of Work)
of the ORION 2 Contract.
"Monthly Amount" means the difference between the
Total Amount at Risk and the
Initial Incentive Amount which
difference is divided into sixty
(60) equal monthly amounts each
having a value of ------------
----------------------------------
__________________________, as may
be adjusted in accordance with the
terms of the ORION 2 Contract.
"NPD" or "Notice to Proceed Date" means February 28, 1997.
"Option" means ORION's option to purchase
the ORION 2 Spacecraft from
Contractor, which option was
granted by Contractor to ORION
under Section 2 of the Option
Agreement.
"Option Agreement" means the Amended and Restated
Option Agreement for Purchase of
ORION 2 Spacecraft, dated the date
first written above, between ORION
and Contractor.
"ORION 2 Spacecraft" means the satellite to be
constructed and delivered to ORION
as part of the Work and as
identified in Part 2(A) (Statement
of Work) of the ORION 2 Contract.
"Other Users" shall have the meaning set forth
in Article 14.4.1.
"Partial Loss" shall have the meaning ascribed to
it in Article 9.2.2.
"Predicted Transponder Life" means the period of time, measured
in years, over which a Serviceable
Transponder can be operated,
commencing from the date of
Delivery of the In-Orbit
Acceptance Report, this period of
time being equal to whichever is
the shortest of:
(i) thirteen (13) years, or
(ii) the ORION 2 Spacecraft
predicted propellant life
calculated in accordance with
Section 5 of Part 3(D) (In-Orbit
Commissioning and Acceptance Test
Requirements) of the ORION 2
Contract, or
(iii) the period of time over
which there is predicted to be
sufficient solar array power to
operate such Serviceable
Transponder co-extensively with
all other Serviceable
Transponders, calculated in
accordance with Section 5 of Part
3(D) (In-Orbit Commissioning and
Acceptance Test Requirements) of
the ORION 2 Contract.
"Primary Transponder" means a Transponder where the
communication
signals are received from and
transmitted to the ground.
"Progress Payments" means those payments listed as
Progress Payments in Part 1(B)
(ORION 2 Payment Plans and
Termination Liability Amounts).
"Replacement Satellite" shall have the meaning ascribed to
it in Article 19.
"Request for Payment" means a request for payment in the
form of Annex A hereto.
"Revenue" means all amounts received by
ORION with respect to an
individual Primary Transponder,
whether as a result of its sale,
lease, license or other
disposition, it being understood
that, if said amounts are not
received in equal monthly
installments, the total amount
received or to be received by
▇▇▇▇▇ shall be deemed received in
equal monthly installments over
the remainder of the Predicted
Transponder Life of such
Transponder.
"Satisfactorily Operating Primary means a Primary Transponder which
Transponder" is capable of meeting (i) the
requirements of Part 3(A) (ORION 2
Spacecraft Specifications)
regarding Primary Transponder
performance and (ii) the Primary
Transponder Test Requirements
defined in Part 3(D) (In-Orbit
Commissioning and Acceptance Test
Requirements).
"Senior Executive" means each of the senior
executives designated from time to
time in writing, by ▇▇▇▇▇ and by
the Contractor, respectively, to
be their representatives for the
purposes of dispute resolution
under the ORION 2 Contract.
"Serviceable Transponder" means a Primary Transponder which
meets the requirements therefor as
set forth in Section 5 of Part
3(D) (In-Orbit Commissioning and
Acceptance Test Requirements) of
the ORION 2 Contract and is
determined, pursuant to Section
5.2 thereof, to be capable of
operation in accordance with such
requirements during periods of
eclipse. In the event that the
Launched ORION 2 Spacecraft has
insufficient energy to operate
thirty (30) Serviceable
Transponders in eclipse, those
specific Transponders, if any,
which failed the testing
requirements of Section 5.2 of
Part 3(D), will not be counted
twice in determining the total
number of Transponders that are
not Serviceable Transponders.
"Subcontract" means a contract awarded by the
Contractor to a Subcontractor or a
contract awarded by a
subcontractor at any tier for the
performance of any of the Work
specified in the ORION 2 Contract.
"Subcontractor" means a person or company awarded
a Subcontract.
"Termination Liability Amounts" means the amounts listed as
Termination Liability Amounts in
Part 1(B) (ORION 2 Payment Plans
and Termination Liability Amounts)
of the ORION 2 Contract.
"Total Amount at Risk" means a firm fixed sum of Ten
Million, Two Hundred Forty
Thousand Dollars ($10,240,000).
"Transponder" means an individual transmission
channel of defined bandwidth
providing a path, inclusive of
amplification, frequency
translation and frequency
channelization, from a receive
antenna with defined coverage and
polarization to a transmit antenna
also with defined coverage and
polarization.
"Work" means the whole of the work
described in Part 2(A) (Statement
of Work) and elsewhere in the
ORION 2 Contract and, where the
context so permits or requires,
"Work" includes any part or parts
of the Work. The Work includes all
elements and phases of delivering
the operational ORION 2 Spacecraft
in-orbit from design and
manufacture through to Launch,
Launch Services and in-orbit
testing, including, but not
limited to, provision of all
necessary equipment and
documentation related thereto,
including Deliverable Items.
Note: The satellites(s) (one or more) referred to herein are variously described
as the "spacecraft" or the "satellite(s)".
1. ORION 2 CONTRACT
1.1
The documents listed in this Article, as amended from time to time in accordance
with Article 27 herein, constitute the ORION 2 Contract:
Issue No.
Part 1(A): ORION 2 Pricing, Terms and Conditions Issue 1
Part 1(B): ORION 2 Payment Plans and Termination Liability Amounts Issue 1
Part 2(A): ORION 2 Statement of Work Issue 3
Part 3(A): ORION 2 Spacecraft Specifications Issue 3
Part 3(D): ORION 2 In-Orbit Commissioning and Acceptance Test Requirements Issue 3
Part 3(C): ORION 2 Spacecraft On-Ground Test Requirements Issue 4
Part 2(B): ORION 2 Contract Documentation Requirements List Issue 2
Part 3(B): ORION 2 Spacecraft Product Assurance Requirements Issue 4
Part 4: Replacement Satellite Long-Lead Items Issue 3
Annex A: ORION 2 Request for Payment and Contractor's Certificates Issue 1
Appendix I: Form of Contractor Certificate Issue 1
Annex B: Launch Agreement Inter-Party Waiver of Liability Provision Issue 1
1.2
Notwithstanding anything herein to the contrary, the documents listed in Article
1.1 above shall be deemed to constitute one fully integrated agreement between
the Parties. Should there be any ambiguity, discrepancy or inconsistency among
any of the documents constituting the ORION 2 Contract, such ambiguity,
discrepancy or inconsistency shall be resolved according to the order of
precedence in which the documents are listed in Article 1.1. Unless specifically
indicated
otherwise herein, all Article and Paragraph references in this Part 1(A) shall
be deemed to be to Part 1(A).
1.3
In the event the Parties are unable to resolve any ambiguity, discrepancy or
inconsistency which affects the Work, ORION shall direct the Contractor and the
Contractor shall follow such direction as to the interpretation to be followed
in carrying out the Work. If the Contractor disputes ▇▇▇▇▇'s interpretation and
such interpretation results in delay and/or increased cost and/or risks, such
dispute shall be handled by the procedures set forth in Article 30.
2. ENTIRE AGREEMENT, EFFECTIVE DATE
2.1
This ORION 2 Contract constitutes the sole agreement as to the Work to be
performed hereunder by the Contractor and supersedes all prior agreements
relating thereto other than the Option Agreement, which shall survive until
ORION exercises the Option granted thereunder. The Parties further agree that
this ORION 2 Contract does not supersede the F1 Contract (including all
amendments thereto) and the F1 Contract shall not be integrated herewith.
2.2
On the date ORION exercises the Option, the ORION 2 Purchase Contract shall be
fully effective and shall be deemed to have been in full force and effect from
the date upon which Contractor receives Option Installment Payment 1under the
Option Agreement.
3. SCOPE OF THE WORK
3.1
The Contractor shall furnish the Work in accordance with the provisions of the
documents which constitute the ORION 2 Contract. In the performance of the Work,
the Contractor shall supply all personnel, materials and facilities necessary
therefor.
3.2
ORION shall specify the final beam coverage for one (1) of the transmit
(Tx)/receive(Rx) coverages no later than NPD and for a second Tx/Rx coverage no
later than three (3) months after NPD. ORION shall also, no later than two (2)
months after NPD, specify the final transponder beam connectivities. If all
finalized beam coverages are consistent with what is achievable with the
proposed antenna aperture sizes meeting the requirements of Part 3(A), price and
delivery schedule shall remain unchanged. If all finalized transponder
connectivities are
consistent with the proposed switching and filtering hardware meeting the
requirements of Part 3(A), price and delivery schedule shall remain unchanged.
3.3
Prior to NPD, the Contractor shall present a thermal design approach with
supporting data and analysis (at the communications panel level), which shall
demonstrate to the reasonable satisfaction of ORION that the ORION 2 Spacecraft
will be designed in full compliance with the requirements of Section 8 of Part
3(A) regarding the thermal control subsystem.
3.4
Prior to NPD, the Contractor shall demonstrate that the ORION 2 Spacecraft has a
realistically calculated forty (40) kg dry mass margin adequate to meet the
specified contract performance requirements, including maneuver lifetime
("Maneuver Lifetime") as set forth in Section 2.1 of Part 3(A).
3.5
The Launch Vehicle Agency is obligated under the Launch Agreement to deliver the
Launch Vehicle with a contract level of performance of seven thousand, six
hundred (7,600) pounds of payload systems mass to a reference geosynchronous
transfer orbit. The Parties have discussed with the Launch Vehicle Agency
methods of enhancing the performance of the Launch Vehicle by using
_______________________________, which will increase the delivery capability of
the Launch Vehicle by approximately one hundred seventy (170) pounds of payload
systems mass to a reference geosynchronous transfer orbit (the "Launch
Enhancements"). The ORION 2 Spacecraft Maneuver Lifetime is based upon the
availability of the Launch Enhancements. Notwithstanding any other provision of
this ORION 2 Contract, if the Launch Vehicle Agency does not make the Launch
Enhancements available, the Maneuver Lifetime shall be reduced to twelve and
seven tenths (12.7) years. In such case, ORION and the Contractor shall use all
commercially reasonable efforts to cause the Maneuver Lifetime to be increased
to thirteen (13) years and the Parties agree to amend such number in the ORION 2
Contract to the extent of such increase. If the Launch Vehicle Agency provides
to the Contractor other Launch Vehicle improvements in addition to the Launch
Enhancements, then seventy percent (70%) of any increased payload systems mass
achieved due to such Launch Vehicle improvements shall be allocated to ORION to
increase the Maneuver Lifetime and thirty percent (30%) of the same shall be
allocated to the Contractor to increase the Contractor's mass margin.
4. RESERVED
5. CONTRACT PRICE
5.1
For the full, satisfactory and timely performance of the Work by the Contractor
in accordance with the provisions of the ORION 2 Contract, ORION shall pay the
Contractor the Contract Price, which includes all taxes applicable at NPD
including personal property taxes, imposts and duties wherever the Work is being
carried out but excludes interest due under Article 6.1.2. The Contract Price
shall be paid in accordance with Article 6 below. Except as otherwise expressly
provided in the ORION 2 Contract, the Contract Price is not subject to any
escalation, or to any adjustment or revision by reason of the actual cost
incurred by the Contractor in the performance of the ORION 2 Contract.
The Contract Price shall comprise the following elements, including any related
training and documentation:
Item Description Amounts $
------------------ ------------------------------------------------------------ ----------------------------------
1. ORION 2 Spacecraft
2. Launch Vehicle
3. Launch Services
------------------ ------------------------------------------------------------ ----------------------------------
CONTRACT PRICE TOTAL $200,830,000
------------------ ------------------------------------------------------------ ----------------------------------
5.2 Variations in Contract Price
The Contract Price is subject to increase with the mutual consent of the Parties
if the Contractor does not receive Option Installment Payment 2 under the Option
Agreement on or prior to April 30, 1997.
6. PAYMENT
6.1.1 Payments
The ORION 2 Contract shall be paid as follows:
(a) Progress Payments. ORION shall make Progress Payments to the Launch
Vehicle Agency in accordance with the Progress Payment Plan specified
in Part 1(B) as adjusted by Articles 5 and/or 27 hereof. Each Progress
Payment shall be payable by the Contractor submitting to ORION a
Request for Payment accompanied by a certificate in the form of
Appendix I to Annex A hereto.
(b) Milestone Payments.
(i) ORION shall make Milestone Payments to the Contractor in
accordance with the Milestone Payment Plan specified in Part
1(B) as adjusted by Articles 5 and/or 27 hereof. Each
Milestone Payment shall be payable by the Contractor
submitting to ORION a Request for Payment accompanied by a
certificate in the form of Appendix I to Annex A hereto
together with such supporting data as the Contractor deems
necessary or appropriate. A Milestone shall not be regarded as
completed until all of the Work relevant to that Milestone has
been completed and documented in accordance with applicable
specifications and procedures and relevant documentation and
training required under the ORION 2 Contract for such
Milestone have been provided to ORION. The Contractor's
failure to achieve any Milestone in the sequence set forth in
Part 1(B) shall not limit the Contractor's rights to claim and
be paid other Milestone Payments when the relevant Milestone
is achieved.
(ii) In no event shall the cumulative Milestone Payments made to
the Contractor for the ORION 2 Spacecraft or Launch Services
at any point in time exceed the cumulative amounts specified
up to that point in time for Milestone Payments for the ORION
2 Spacecraft or Launch Services as set forth in Part 1(B) as
it may be modified from time to time.
(c) Credit for Payments. All Option Installment Payments (Spacecraft and
Launch Vehicle) that the Contractor or the Launch Vehicle Agency
receives from ORION under the Option Agreement shall be applied against
Milestone Payments and Progress Payments, respectively. The Contractor
shall apply the $1,000,000 paid to the Launch Vehicle Agency prior to
the date of the Option Agreement against Progress Payments.
(d) Delivery to ORION. Each Request for Payment and accompanying
certificate shall be telefaxed to ORION followed by airmailed
signed copies.
6.1.2 Payments by ▇▇▇▇▇
ORION shall pay each Milestone Payment and Progress Payment in full within
thirty (30) Calendar Days after the delivery of a Request for Payment (in
accordance with the procedures set forth in Article 6.1.1) into the appropriate
bank accounts set forth in Article 6.1.3.
Where the thirty (30) Calendar Days allowed for payment after delivery of a
Request for Payment for a Milestone or Progress Payment causes a payment to
become due on a non-Business Day, such payment shall be due on the next Business
Day.
Contractor shall be entitled to the interest earned on any properly due but
unpaid amount for each Calendar Day after the date any Progress or Milestone
Payment is due; Contractor shall be paid any interest to which it is entitled
within ten (10) Calendar Days of the determination that such interest is due;
and interest shall be calculated in accordance with Article 43.
Any amounts payable to the Launch Vehicle Agency shall be paid directly by
▇▇▇▇▇.
6.1.3 Procedures
Payment shall be made in accordance with Articles 6.1.1 and 6.1.2 into the
following bank accounts:
In the case of the Contractor:
Account name: MATRA MARCONI SPACE UK LIMITED
Account number:
Bank name: Midland Bank Plc
Sort code:
Bank address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
In the case of ORION:
Account name: IPSP Receipt Account
Account number:
Bank name: The Chase Manhattan Bank, N.A.
Sort code:
Bank address: ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
In the case of the Launch Vehicle Agency:
Account name: Lockheed ▇▇▇▇▇▇ Commercial Launch Services, Inc.
Account number:
Bank name: Citibank N.A.
ABA number:
Bank address: One Penn's ▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Any payment shall be deemed to have been made when credit for the amount is
established in the above bank accounts. Each Party shall notify the other Party
in writing within ten (10) Calendar Days of a change to the above bank accounts.
6.2 Dispute
In a written notice (which may be a telefax followed by an originally signed
copy) received by the Contractor no later than twenty (20) Business Days after
receipt by ORION of a Request for Payment in connection with a Milestone Payment
or other payment under Article 6.4, ▇▇▇▇▇ may dispute timely completion of the
Milestone associated with such Milestone Payment or other payments. In the event
there is such a dispute, ▇▇▇▇▇ shall nonetheless pay the Milestone Payment in
accordance with Article 6.1.2 without waiving any of its rights. In the event it
is determined, either by agreement of the Parties or by dispute resolution
pursuant to Article 30 hereof, that the Milestone with respect to which such
notice shall have been timely received was not completed as of the date of the
Request for Payment, ORION shall be entitled to the interest at the rate
specified in Article 43 earned on the disputed amount for each Calendar Day
after the date such Milestone Payment was paid until the day the Milestone
associated therewith is completed. ▇▇▇▇▇ shall be paid any interest to which it
is entitled within ten (10) Calendar Days of the determination that such
interest is due. Interest shall be calculated in accordance with Article 43.
6.3 Other Payments
Except as otherwise expressly stated herein, all other payments by ▇▇▇▇▇ to the
Contractor shall be made in accordance with the procedures set forth in Article
6.1.3 within thirty (30) Calendar Days after receipt by ▇▇▇▇▇ of a telefaxed
invoice. This invoice will be followed by an airmailed original and one copy.
6.4 Setoff
In the event that one Party has not paid the second Party any amount which is
due and payable to the second Party under the ORION 2 Contract, such second
Party shall have the right to set off such amount against payments due to the
first Party, provided any amount in dispute pursuant to Article 6.2 shall not be
considered due and payable while the dispute is being resolved.
6.5
If (a) the Contractor fails to make the Spacecraft available to the Launch
Vehicle Agency in sufficient time for the Launch to occur on or prior to 31 July
1999 and such failure is due to any reason other than the Contractor's failure
to perform the Work in accordance with Part 2(A) or other than Excusable Delay
(but not Excusable Delay caused by ORION's failure to meet its responsibilities
under the Orion 2 Contract, including Article 18.5, its invalid exercise of its
rights under Article 13, or its exercise of its rights under Article 41), or (b)
the Launch Agreement is terminated pursuant to Article 41, then the Contract
Price shall be increased by any additional amount required by the Launch Vehicle
Agency to perform the Launch.
7. ACCESS TO WORK
7.1
ORION and the Consultants shall have reasonable access (upon reasonable notice
to the Contractor from ORION, but no less than forty-eight (48) hours) to any
premises of the Contractor or Major Subcontractors, or other selected
Subcontractors on an "as needed" basis for short durations, where Work is being
performed and may observe all of the Work, as well as any associated facilities
and documentation, during regular business hours, or such other times as Work is
being performed under the ORION 2 Contract. ▇▇▇▇▇ shall justify to the
Contractor why such access to other selected Subcontractors is needed but such
access shall not be unreasonably withheld. ORION and the Consultants shall also
be entitled to attend all meetings and reviews of the Contractor and of the
Contractor with Subcontractors related to project schedule and management,
engineering, design, manufacturing, integration and testing and Launch as
reasonably necessary and with the prior approval of the Contractor. The
Contractor shall provide ORION and the Consultants reasonable assistance in the
performance of such inspections. The Parties agree that non-escort permanent
badges to agreed work areas where ORION activities are being performed shall be
made available to all ORION representatives subject to adequate notice of
personnel details being provided to the Contractor and security clearance being
granted.
7.2
The Contractor shall provide office space and facilities for the accommodation
of up to six (6) representatives (plus a secretary) employed by ORION (or its
Consultants) at the Contractor's plants and at environmental test facilities (if
located off site) and shall ensure that such space and facilities are provided
at the repeater Subcontractors' plant for up to three (3) representatives and
at other selected Subcontractors' plants on a temporary basis to attend meetings
or witness tests. Provision for up to four (4) engineers (plus a secretary)
shall be made at the Launch site facility. At a minimum, the Contractor shall
provide desks, chairs, normal office supplies, local telephone service (long
distance telephone usage to be charged to ORION), car parking facilities and
access to meeting rooms, copying machines and facsimile equipment, and access to
and use of video conferencing facilities, if any, at the Contractor's plants (in
this connection, Contractor will take reasonable measures to facilitate video
conferencing between Contractor's plants and ORION's premises, provided the
video conferencing facilities of both Parties are fundamentally compatible).
ORION shall make ORION space segment capacity for video conferencing available
without charge.
7.3
The Contractor shall require that any Subcontract contains a provision
substantially similar to this Article 7 to ensure ORION's rights under the ORION
2 Contract, except that ORION's access to the Launch Vehicle Agency's facilities
shall be controlled by the Launch Vehicle Agency.
7.4
ORION and its Consultants will have reasonable access to any drawings,
specifications, standards or process descriptions which are available to the
Contractor and relevant to the ORION 2 Spacecraft and Data and Documentation to
be Delivered under the ORION 2 Contract. If an electronic mail system is used by
the Contractor to distribute documentation, access to ORION representatives is
to be approved by the Contractor. The Contractor will make available, to the
extent permitted under Article 24, copies of such documentation, at no charge to
ORION, on the reasonable request of ORION or ORION's Consultant where such
documentation is necessary for evaluation of designs, performance
considerations, assessment of test plans and test results or for any other
purpose connected with the design, qualification, testing, Launch, Final
Acceptance or operation of the ORION 2 Spacecraft components. The Contractor
will allow ORION or its Consultants reasonable access to all drawings and
document indices to facilitate their work in this respect. The Contractor shall
establish data links between its and ORION's facilities such that ORION has
remote electronic access to those project related documents identified in Part
2(B). ORION shall make space segment capacity required for such remote access
available without charge. The Contractor will also provide ORION and its
Consultants with "real time" access to all measured data taken at the
Contractor's and Subcontractors' facilities on a non-interference basis. In
addition, ▇▇▇▇▇ shall have access to those project related documents which are
of the type to which ORION had access during the implementation of the F1
Contract.
7.5
In exercising its rights under the ORION 2 Contract, ORION and the Consultants
shall be subject to Governmental security requirements of the Contractor and its
Subcontractors and the Contractor shall use its best efforts to ensure that such
security requirements do not unduly
restrict access or viewing by ORION subject to adequate notice of ORION
personnel details being provided to the Contractor. Access by ORION or any
Consultant to Subcontractor facilities shall be coordinated through the
Contractor.
7.6
In the event a meeting is convened at the Contractor's or a Subcontractor's
plant, the Contractor shall provide reasonable advance notice to ORION (e.g.,
one week for regularly scheduled meetings) and make the necessary arrangements
to facilitate the entry of ORION or its Consultants to the meeting place subject
to adequate notice of ORION personnel details being provided to the Contractor.
7.7
Subject to Article 27 hereof, the inspection, examination, agreement to, or
approval, waiver or deviation by ORION (other than in accordance with Article
27) with regard to any design, drawing, specification or other documentation
produced under the ORION 2 Contract shall not relieve the Contractor from
fulfilling its contractual obligations or result in any liability being imposed
on ORION.
7.8
ORION shall have the right to participate in and make recommendations, but not
to control, give directions or assign actions, in all review meetings at the
system, subsystem and critical component levels, as well as test review board,
manufacturing review board and failure review board meetings. The Parties agree
to work cooperatively in resolving issues that arise at the various review board
meetings and, where ▇▇▇▇▇ has an objection to a recommended
resolution/implementation, the Parties agree to discuss it at a senior
management level (▇▇▇▇▇'s Senior Vice President, Engineering and Satellite
Operations and Contractor's Director of Civil Communications Satellites) prior
to implementation, but the final decision concerning implementation shall remain
with the Contractor who shall provide ORION with a written explanation for its
decision.
8. DELIVERABLE ITEMS AND DELIVERY DATES
8.1
"Delivery" shall be deemed to have occurred for each Deliverable Item upon its
Final Acceptance by ▇▇▇▇▇. The Parties acknowledge that the Delivery of the
ORION 2 Spacecraft is to be in orbit. Subject to this Article and Articles 12,
18.5 and 27, the Parties agree that the Delivery Dates for Deliverable Items
under the ORION 2 Contract (depending on the final configuration selected) are
as follows:
Item Description Delivery Date
1. Delivery of ORION 2 Spacecraft in Orbit 28.25 months after NPD (provided a Launch
Slot is available in such timeframe)
2. Data and Documentation As specified in Section 9.2.1 of Part
1(A), Part 2(A), Part 2(B) and Part 3(D)
3. Mission Specific Hardware and Software As specified in Section 10 of Part 2(A)
-------- ------------------------------------------------- -------------------------------------------
The Parties will negotiate in good faith reasonable adjustments in the Delivery
Date for the ORION 2 Spacecraft upon the addition, elimination or technical
complication or simplification of other ORION 2 Spacecraft items prior to NPD,
to the extent such additions, eliminations and/or technical complications or
simplifications are, singly or in the aggregate, material (i.e., more than minor
in effect on cost, schedule and/or performance).
If at NPD there is less than twenty-eight and three quarters (28.75) months from
NPD to the last possible day of the Launch Period, then the Parties shall, in
good faith, negotiate a revised delivery schedule with the Launch Vehicle Agency
(or, if necessary, with a different launch vehicle provider) such that there is
at least a two (2) month margin in the schedule (which schedule is twenty-six
and three quarters (26.75) months to Launch) and the Parties shall enter into an
Amendment of the ORION 2 Contract reflecting any resultant changes in schedule
and Contract Price.
If (a) the Contractor fails to make the Spacecraft available to the Launch
Vehicle Agency in sufficient time for the Launch to occur on or prior to 31 July
1999 and such failure is due to Excusable Delay or (b) the Launch Agreement is
terminated pursuant to Article 41, then the
Delivery schedule shall be amended to reflect an in-orbit Delivery Date
occurring six (6) weeks (forty-two (42) Calendar Days) after the actual launch
date of the Orion 2 Spacecraft.
For the avoidance of doubt, the Parties recognize and agree that in the event of
a Constructive Total Loss of the ORION 2 Spacecraft, the Delivery Dates provided
in Article 8 hereof shall, in respect of the ORION 2 Spacecraft and its related
Data and Documentation not already delivered, be extinguished and have no
further effect.
8.2
The Contractor understands and agrees that, with respect to the Delivery Dates
for all Deliverable Items, whether those items are set out in the ORION 2
Contract or in subsequent Amendments to the ORION 2 Contract, time is of the
essence under the ORION 2 Contract. Nothing in the foregoing sentence shall in
any way modify either the specific remedies for default specified elsewhere in
the ORION 2 Contract, including but not limited to Articles 11.2 and 21, or the
specific dispute resolution requirements specified in the ORION 2 Contract.
8.3
The Contractor, if requested to do so by ▇▇▇▇▇, agrees to construct and launch
an additional satellite, the Replacement Satellite, in accordance with the terms
set forth in Article 19.
8.4
On time schedules to be mutually agreed to in writing, ▇▇▇▇▇ will make available
to the Contractor fully operational in-orbit test equipment equivalent to that
used on the F1 Spacecraft as specified in Part 2(A) and facilities (Mt. ▇▇▇▇▇▇▇
and Fucino) for use in meeting the requirements of Part 3(D). Contractor will
make available (but not deliver) additional test equipment, as reasonably
necessary, for in-orbit testing of the American coverage beam in order to
satisfy the requirements of Part 3(D).
9. FINAL ACCEPTANCE
9.1 Data and Documentation
9.1.1
"Final Acceptance" (and therefore, Delivery) of Data and Documentation shall
occur only when:
(i) the Contractor has fulfilled the ORION 2 Contract requirements for the
Data and Documentation; and
(ii) the Data and Documentation has been delivered at the place specified in
the ORION 2 Contract in a condition fully conforming to the provisions
of the ORION 2 Contract.
Data and Documentation, other than Data and Documentation which requires
approval and acceptance by ▇▇▇▇▇ in accordance with Article 9.1.2 hereof, shall
be deemed to have achieved Final Acceptance unless rejected by ▇▇▇▇▇ in writing
within ten (10) Business Days after receipt of said Data and Documentation by
▇▇▇▇▇.
If Data and Documentation not requiring approval and acceptance by ORION is
unacceptable, ORION shall, within the said ten (10) Business Days, notify the
Contractor in writing in which respects the Data and Documentation is
unacceptable. Any Data and Documentation that is considered by ORION to be
unacceptable with respect to which ▇▇▇▇▇ has so notified the Contractor as being
unacceptable, shall be deemed under the ORION 2 Contract not to have been
Delivered unless and until the Defects that resulted in such rejection have been
remedied or demonstrated not to exist pursuant to verification procedures in
accordance with the ORION 2 Contract and the Data and Documentation is at the
specified delivery location in accordance with the ORION 2 Contract whereupon
ORION shall accept the Data and Documentation in writing and Final Acceptance
shall occur.
9.1.2
Final Acceptance of any Data and Documentation requiring approval by ORION in
accordance with Part 2(B) shall occur when such approval has been granted by
▇▇▇▇▇ in writing. ORION shall respond under this Article 9.1.2 within ten (10)
Business Days after receipt of such Data and Documentation by ▇▇▇▇▇; failing
such response, the Parties shall be deemed forthwith to be in dispute and their
rights shall be determined in accordance with the provisions of Article 30
hereof.
9.1.3
The provisions of this Article 9.1 shall not apply to the Final Acceptance of a
Launched ORION 2 Spacecraft or to the In-Orbit Acceptance Report. The Final
Acceptance of the Launched ORION 2 Spacecraft and of the In-Orbit Acceptance
Report essential thereto shall be governed by Article 9.2.
9.2 Launched ORION 2 Spacecraft
9.2.1
Upon arrival at its designated orbital location, the Contractor will perform the
tests and analyses as set forth in Part 3(D) for the Launched ORION 2 Spacecraft
to determine the Aggregate Predicted Transponder Life of the Launched ORION 2
Spacecraft.
The results of such tests and analyses will be furnished to ORION in an In-Orbit
Acceptance Report prepared by the Contractor for the Launched ORION 2 Spacecraft
in accordance with Part 2(A), Part 2(B) and Part 3(D). Unless the Launched ORION
2 Spacecraft is a Constructive Total Loss, Delivery and Final Acceptance will
take place upon receipt by ORION of the In-Orbit Acceptance Report in full
compliance with Part 2(A), Part 2(B) and Part 3(D).
(a) In respect of the Launched ORION 2 Spacecraft (if it arrives at its
designated orbital location):
(i) Within one hundred and eighty (180) days after Launch of the
ORION 2 Spacecraft, the Contractor shall furnish to ORION the
In-Orbit Acceptance Report in full compliance with Part 2(A),
Part 2(B) and Part 3(D) in respect of the Launched ORION 2
Spacecraft.
(ii) Unless ORION shall respond to such In-Orbit Acceptance Report
within thirty (30) Calendar Days after receipt thereof, or
such other period of time acceptable to both Parties, the
Report shall be deemed acceptable.
(iii) If ▇▇▇▇▇'s response under Article 9.2.2(a)(ii) contains an
objection to such In-Orbit Acceptance Report, the Parties
shall be deemed forthwith to be in dispute and their rights
shall be determined in accordance with the provisions of
Article 30 hereof.
(iv) The existence of a dispute shall not affect Final Acceptance
set forth above; unless, under the procedures in Article 30,
it is ultimately determined that the Launched Spacecraft is a
Constructive Total Loss. If the Launched ORION 2 Spacecraft
fails to arrive at its designated orbital location in time to
complete in-orbit testing and provision of the In-Orbit
Acceptance Report within one hundred and eighty (180) Calendar
Days after Launch, the ORION 2 Spacecraft shall be deemed a
Constructive Total Loss.
(b) Without limiting any other Contractor obligations under this Article 9
and in order to comply with insurance requirements, within thirty (30)
Calendar Days following receipt of information that one or more of the
following circumstances exist, the Contractor shall provide written
notice of loss to ORION and to all insurers under applicable policies
(provided that the Contractor shall have no obligation to provide such
notice to the Launch Insurance insurer unless ▇▇▇▇▇ identifies such
insurer to the Contractor) specifying in such notice:
(i) The basis for a Partial Loss or a Constructive Total Loss
under Articles 9.2.2 or 9.2.3, respectively; or
(ii) within any of the provisions of Article 9.2.3; or
(iii) The Parties are deemed to be in dispute under any of the
provisions of Article 9.2.1(a) or Article 9.2.3.
Such notice of loss shall comply with the provisions of Article 34
hereof, and the foregoing specified time for the provision of notice
may be shortened in compliance with the respective requirements of such
insurers.
9.2.2
A Partial Loss shall occur in respect of the Launched ORION 2
Spacecraft, if the In-Orbit Acceptance Report accurately confirms
(a) that the Aggregate Predicted Transponder Life is
________________________ ____________ years or less but (i) is
_______________________ years or higher, and (ii) at
least_________________ downlink Transponders with ______ at
the _________ GHz frequency and _________ at either of the two
frequency ranges of _________ or _________ GHz frequency are
Serviceable Transponders, and (iii) at least_______ American
downlink Transponders are Serviceable Transponders, then the
ORION 2 Spacecraft will be deemed to have sufficient
revenue-earning capacity to form an economically viable part
of the space segment of the ORIONSAT system. In such case,
▇▇▇▇▇ must accept the ORION 2 Spacecraft; and/or;
(b) that the ORION 2 Spacecraft has fewer than_______ American
downlink Transponders which are Serviceable Transponders.
9.2.3
Notwithstanding any other provisions of this Article 9, if the ORION 2
Spacecraft is a Constructive Total Loss pursuant to item B of the definition of
such term, the Contractor shall furnish ORION with written notice of loss in
respect of the Launched ORION 2 Spacecraft. Such notice shall be furnished to
ORION promptly upon the Contractor's concluding from information available to it
that such Constructive Total Loss has occurred. In no circumstance shall such
notice of loss be furnished to ORION later than one hundred and eighty (180)
Calendar Days after Launch of the ORION 2 Spacecraft.
If the Contractor fails to provide ORION with the notice of loss in respect of
the Launched ORION 2 Spacecraft specified under this Article 9.2.3 within the
respective times specified herein, or if ORION rejects the Contractor's notice
of loss, the Parties shall be deemed forthwith to be in dispute and their rights
shall be determined in accordance with the provisions of Article 30 hereof.
In all circumstances Final Acceptance shall be deemed to have occurred upon
Constructive Total Loss. In the event of Constructive Total Loss the provisions
of Article 15 shall not apply.
9.2.4
In the event of a dispute as to the performance of the Launched ORION 2
Spacecraft, the Parties agree to have an independent determination of the ORION
2 Spacecraft technical status performed by a mutually acceptable technically
qualified third party. The costs incurred in retaining the third party shall be
shared equally between the Contractor and ORION. The Parties agree that before
reference to such mutually-acceptable technically-qualified third party, an
informal forum between Contractor's Senior Executive and ▇▇▇▇▇'s Senior
Executive shall take
place to attempt a resolution of said dispute. In the event that such efforts to
resolve the dispute have been unsuccessful, the Parties shall proceed under
Article 30 hereof. The foregoing independent determination may be used by either
Party in any arbitration under Article 30 hereof, but such determination shall
not be binding upon the arbitrators.
9.2.5
In addition, the following provisions shall be applicable to the implementation
of this Article 9.2:
(a) Warranty
The Parties hereto warrant and represent that they will not withhold
from each other any of the material information they have or will have
concerning anomalies, failures and deviations from the requirements of
the ORION 2 Contract, from NPD through Intentional Ignition in respect
of the ORION 2 Spacecraft.
(b) Access to Technical Information
Upon request of a Party, the other Party will respond or permit the
first Party to respond to any insurers in relation to all specific and
reasonable questions relating to design, test, quality control, launch
and orbital information. In addition, in the event a Party notifies or
is notified by the other Party of an occurrence which may be expected
to result in a Partial Loss or Constructive Total Loss under this
Article 9.2, such other Party will permit and assist the first Party
to:
(i) conduct review sessions with a competent representative
selected by the insurers to discuss any continued issue
relating to such occurrence, including information conveyed to
either Party; and
(ii) use its best efforts to secure the insurers' access to all
information used in or resulting from any investigation or
review of the cause or effects of such occurrence; and
(iii) make available for inspection and copying all information
necessary to establish the scope of such occurrence and
verifying the accounting methods employed to compute any
refund payment obligated thereby.
9.2.6
If either Party at any time after Launch but prior to Final Acceptance has a
reasonable basis for concluding that Final Acceptance will not be achieved
within the time limits provided for in this Article 9 and the other Party fails
to agree with that conclusion within thirty (30) Calendar Days of notice, either
Party shall have the right to proceed under Article 30.
9.2.7
Notwithstanding that title to each Deliverable Item remains with the Contractor
until Final Acceptance, the Contractor shall have no liability under this ORION
2 Contract for a Partial Loss or a Constructive Total Loss; however, this
Article 9.2.7 shall have no effect on the rights of the Parties under Article
11.2 and 15.
10. TRANSFER OF TITLE AND ASSUMPTION OF RISK
10.1
Transfer of title, free and clear of all liens and encumbrances of any kind, and
risk of loss or damage to each Deliverable Item shall pass to ORION at Final
Acceptance, provided, however, risk of loss or damage to the ORION 2 Spacecraft
shall pass to ORION at Intentional Ignition.
10.2
In the event of a Constructive Total Loss, title free and clear of all liens and
encumbrances of any kind shall pass to ORION. In such event, at ▇▇▇▇▇'s
direction, Contractor shall surrender the ORION 2 Spacecraft to insurers
obligated to cover such loss.
11. ORION 2 SPACECRAFT DELIVERY INCENTIVE AND LATE DELIVERY LIQUIDATED
DAMAGES
11.1 Delivery Incentive
▇▇▇▇▇ acknowledges and agrees that the Delivery of the ORION 2 Spacecraft
earlier than the Delivery Dates determined under Article 8 may be the sole or
partial cause of financial gain being sustained by ▇▇▇▇▇. In the event of the
Delivery of the ORION 2 Spacecraft earlier than the applicable Delivery Date as
it may be adjusted pursuant to Articles 8, 12, 18.5 and/or 27 hereof, ▇▇▇▇▇
agrees to pay the Contractor within thirty (30) Calendar Days of Final
Acceptance as an incentive the sum of Twenty-Five Thousand Dollars ($25,000) per
Calendar Day for each day that Delivery of the ORION 2 Spacecraft occurs earlier
than the Delivery Date for the ORION 2 Spacecraft, provided, however, that such
payments may be delayed until such time as payment is permitted under any
Financing Agreement.
11.2 Late Delivery Liquidated Damages
The Contractor acknowledges and agrees that failure to meet the ORION 2
Spacecraft Delivery Date may be the sole or partial cause of substantial
financial loss or damage being sustained by ORION, due to the cost of carrying
any ORION external financing, cost of alternative means of providing service to
customers and loss of continuity of service. In the event that the Delivery of
the ORION 2 Spacecraft is later than the applicable Delivery Date as set forth
in Article 8.1 (and notwithstanding Article 9.2) and where such delay is not
subject to an extension of time pursuant
to Articles 8, 12, 18.5 and/or Article 27 hereof, the Contractor agrees to pay
to ORION, as liquidated damages and not as a penalty for each Calendar Day
during the period of such delay from and including the ___________ Calendar Day
of lateness up to and including the____ ____________________ Calendar Day of
lateness (the "Liquidated Damages Period") as follows: (i) the sum of
_____________________________________________ for each Calendar Day in such
Liquidated Damages Period during which the Contractor has not achieved Milestone
15 (lateness to run from ___________ months and ____________ after NPD) and (ii)
the sum of _________________________ per day for each other Calendar Day in such
Liquidated Damages Period. The total amount of liquidated damages payable by the
Contractor shall not exceed the sum of Eleven Million, Eight Hundred Twelve
Thousand, Five Hundred Dollars ($11,812,500).
Liquidated damages may not be levied on the ORION 2 Spacecraft after termination
in accordance with this ORION 2 Contract or after the ORION 2 Spacecraft has
been declared a Constructive Total Loss in accordance with Article 9 but ORION
shall have the right to collect those liquidated damages that have previously
accrued.
11.3
▇▇▇▇▇ shall have the right to offset any liquidated damages owed to it under
this Article against any amounts due the Contractor under the ORION 2 Contract.
11.4
Except as provided under the provisions of Article 21, the liquidated damages
provided in this Article shall be ORION's exclusive remedy for late Delivery of
the ORION 2 Spacecraft and shall be in lieu of all other damages under the ORION
2 Contract, or at law. This provision in no way limits ▇▇▇▇▇'s remedies under
Article 22 for insolvency or bankruptcy of the Contractor.
12. EXTENSIONS FOR EXCUSABLE DELAYS
12.1
The Contractor shall be entitled to extensions of time beyond the Delivery Dates
determined under Article 8 only in accordance with the following provisions, and
the provisions of Articles 8, 18.5 and 27 and any other specific provision of
the ORION 2 Contract providing for extensions of time beyond the Delivery Dates
set forth in Article 8.1.
12.2
12.2.1 RESERVED
12.2.2
Any delay in the performance of the Work caused by an event which is beyond the
reasonable control of the Contractor or its Subcontractors, such as, but not
limited to, any civil commotion, invasion, hostilities, sabotage, earthquake,
fire, flood, explosion, governmental regulations or controls, labor strikes,
work stoppages or slow downs (but excluding any such labor strikes, work
stoppages or slow downs occurring at the facilities of the Contractor and/or at
any or all of the facilities of the Launch Vehicle Agency, NEC, or COMDEV),
freight embargoes, or acts of God, and which delay could not have been avoided
by the Contractor or a Subcontractor through the exercise of reasonable
foresight or reasonable precautions, and which cannot be circumvented by the
Contractor or a Subcontractor through use of its reasonable efforts to establish
work-around plans or other means, or delay caused by failure by ORION to meet
its responsibilities (including an invalid exercise of its rights under Article
13) under the ORION 2 Contract or exercise by ORION of its rights under Articles
18.5 or 41 shall constitute "Excusable Delay" if notice thereof is given to
ORION, in writing, within ten (10) Business Days after the Contractor shall have
first learned of the occurrence of such an event. Such notice shall include a
detailed description of the portion of the Work known to be affected by such a
delay, as well as details of any work-around plans, alternate sources or other
means the Contractor expects to utilize to minimize a delay in performance of
the Work. Notice must also be given to ▇▇▇▇▇ in writing when the event
constituting an Excusable Delay appears to have ended. Without prejudice to the
foregoing, any postponement of the Launch of the ORION 2 Spacecraft which is
announced by the Launch Vehicle Agency more than one (1) calendar month prior to
the Launch Date shall constitute an event of "Excusable Delay" within the
meaning of this Article 12, provided that the maximum total amount of such
Excusable Delay shall be twelve (12) months. Notwithstanding the foregoing, any
postponement of the ORION 2 Spacecraft scheduled Delivery Date due to a launch
failure within sixty (60) Calendar Days prior to the Launch Date or a Launch
postponement due to bad weather or a launch vehicle accident occurring proximate
to the Launch Date shall constitute an event of "Excusable Delay" within the
meaning of this Article 12 if notice thereof is given to ORION, in writing as
soon as practicable but in no event later than seven (7) Calendar Days after the
Contractor shall have first learned of the occurrence of such an event,
provided, however, that the maximum total amount of such Excusable Delay shall
be twelve (12) months.
The Contractor shall be entitled to such extensions of time as are reasonable
for the Excusable Delay. In the event ORION disputes the Excusable Delay, ▇▇▇▇▇
must inform the Contractor in writing within ten (10) Business Days from the
date of receipt of written notice of the event constituting an Excusable Delay
and, if the Parties have not resolved the dispute within the ten (10) Business
Days of the Contractor's receipt of written notice from ORION, the dispute shall
be resolved pursuant to Article 30. Without prejudice to the foregoing, if any
Excusable Delays other than Excusable Delays resulting from ▇▇▇▇▇'s failure to
meet its responsibilities (including an invalid exercise of its rights under
Article 13) under the Orion 2 Contract, or its
exercise of its rights under Article 41 or resulting from Article 18.5, exist
for a cumulative period of time exceeding eighteen (18) calendar months, the
Contractor agrees to pay to ORION, as liquidated damages and not as a penalty,
such reasonable interest costs as ORION actually incurs in relation to any debt
financing of the ORION 2 Spacecraft directly as a consequence of such Excusable
Delay. The Contractor's liability to pay such interest costs to ORION shall be
calculated as, and shall be limited to, the amount of such interest costs
incurred by ORION between (i) the first (1st) Calendar Day of the nineteenth
(19th) calendar month of such Excusable Delay and (ii) the last Calendar Day of
such Excusable Delay or the date of termination of the ORION 2 Contract,
whichever is the earlier. ORION shall be required to provide reasonable evidence
to the Contractor of it having reasonably incurred such interest costs.
12.3
Any extension of time granted under this Article shall be formalized by the
execution of an Amendment to the ORION 2 Contract wherein adjustments shall be
recorded with respect to the new Delivery Dates for the Deliverable Items set
forth in Article 8, the dates set forth in Article 41 and the delivery dates set
forth in Article 19.1 and modifications made as appropriate to the Advance
Funding schedule of payments set forth in Article 19.2 and the Part 1(B)
Milestone Payment Schedule, and Progress Payment Schedule, and Termination
Liability Amounts Schedule. The Contractor acknowledges and understands that the
occurrence of an Excusable Delay shall not entitle the Contractor to an increase
in the Contract Price unless the Excusable Delay is caused directly by ORION's
failure to meet its responsibilities under the ORION 2 Contract or by exercise
by ORION of its rights under Article 41 or resulting from Article 18.5, in which
event there shall be an equitable adjustment to the Contract Price.
13. CORRECTION OF DEFECTS
13.1
▇▇▇▇▇ shall notify the Contractor in writing when it believes any Defect exists
in the ORION 2 Spacecraft, the services or the Data and Documentation. The
Contractor may from time to time advise ORION in writing that it disagrees with
▇▇▇▇▇ or ▇▇▇▇▇'s Consultant as to the existence or nature of a Defect. In such
event, the Parties shall negotiate in good faith to determine what Defect
exists, if any, and any action required to remedy such Defect.
13.2
Without limiting the obligations of the Contractor or the rights of ORION under
the provisions of the ORION 2 Contract, prior to Launch of the ORION 2
Spacecraft the Contractor shall, at its expense, use its best efforts to
promptly correct any Defect related to the ORION 2 Spacecraft which it or ORION
discovers during the course of the Work, and notwithstanding that a payment may
have been made in respect thereof, and regardless of prior reviews, inspections,
approvals or acceptances. This provision is subject to the right of the
Contractor to have any items containing
a Defect returned at the Contractor's expense to the Contractor's facility for
the Contractor to verify the non-conformance and to correct the Defect. All
transportation costs such as packaging, shipping and insurance, shall be paid by
the Contractor, except that if it is reasonably determined after investigation
that ORION or its Consultants directly caused the Defects in question, or that
the item is in conformance with applicable specifications and requirements,
▇▇▇▇▇ will reimburse the Contractor for the above-described costs and will pay
all costs associated with the shipment to and from the Contractor's facility. If
the Contractor fails to so correct such Defects within a reasonable time after
notification from ORION and after the Parties have followed the provisions of
Article 13.1 above (including agreement on the existence of such Defect), ORION
may, by separate contract or otherwise, correct or replace such items or
services, and, unless it is reasonably determined after investigation that ORION
directly caused the Defect in question, or that the item or service is in
conformance with applicable specifications or requirements, the Contractor shall
pay to ORION the reasonable cost of such correction or replacement. The amount
payable by the Contractor shall be verified at the Contractor's request by an
internationally recognized firm of accountants appointed by the Contractor, such
appointment to be approved by ▇▇▇▇▇ and such approval not to be unreasonably
withheld or delayed. The costs of such verification shall be paid by the
Contractor and shall be without prejudice to the right of either Party to seek
arbitration under Article 30. The report of such accountants may be used by
either Party in any arbitration proceeding but shall not be binding upon the
arbitrators. In such event, the Contractor, if required by ▇▇▇▇▇, but pursuant
to the arrangement set forth in this Article 13.2, shall promptly repay such
portion of the Contract Price as is equitable in the circumstances. The amount
paid to ORION to correct such Defect may be offset against any payments due to
the Contractor by ▇▇▇▇▇ under this ORION 2 Contract.
13.3
Without limiting the obligations of the Contractor or the rights of ORION under
other provisions of the ORION 2 Contract, if the data available from the
Launched ORION 2 Spacecraft or from other spacecraft of a similar class which is
being built by the Contractor shows that the ORION 2 Spacecraft contains a
Defect, the Contractor shall inform ORION of such Defect and shall, promptly
upon the request of ORION, use its best efforts to take appropriate corrective
measures with respect to the Replacement Satellite, if any, which has not been
Launched so as to satisfactorily eliminate from such Replacement Satellite such
Defects. The Contractor shall fulfill the foregoing obligations at its own cost
and expense, including all costs arising from charges for shipping, insurance,
taxes and other matters associated with the corrective measures. If the
Contractor fails to take such corrective measures with respect to such
Replacement Satellite which has not been Launched, within a reasonable time,
ORION may have any or all such Defects corrected through other means, in which
event the Contractor shall make such Replacement Satellite which has not been
Launched and its component parts thereof available as required and shall pay,
subject to the verification procedures set forth in Article 13.2, all reasonable
costs of such corrective measures.
In the event ORION makes such corrections, ▇▇▇▇▇ may offset the amount paid to
have the Defects corrected against any payments due the Contractor by ▇▇▇▇▇
under this ORION 2 Contract.
13.4
Without limiting the obligations of the Contractor or the rights of ORION under
other provisions of the ORION 2 Contract, if the data available from another
spacecraft of a similar class that is being built or has been launched by
Contractor shows that the ORION 2 Spacecraft contains a Defect, the Contractor
shall inform ORION of such Defect and shall, promptly upon the request of ORION,
use its best efforts prior to Launch to take appropriate corrective measures
with respect to the ORION 2 Spacecraft so as to satisfactorily eliminate such
Defect from the ORION 2 Spacecraft. The Contractor shall fulfill the foregoing
obligations at its own cost and expense, including all costs arising from
charges for shipping, insurance, taxes, and other matters associated with the
corrective measures. If the Contractor fails to take such corrective measures
with respect to the ORION 2 Spacecraft within a reasonable time after request
from ORION, ORION may by separate contract or otherwise, have all such Defects
corrected and the Contractor shall pay, subject to the verification procedures
set forth in Article 13.2, all reasonable costs of such corrective measures.
In the event ORION makes such corrections, ▇▇▇▇▇ may offset the amount paid to
have the Defects corrected against any payments due the Contractor from ORION
under this ORION 2 Contract.
13.5
Subject to Article 12, the Contractor acknowledges and agrees that it shall not
be entitled to payment for any additional costs incurred as a consequence of any
Defect. In addition to ▇▇▇▇▇'s rights under Article 21, if correction of any
Defect causes a delay in the Delivery of the ORION 2 Spacecraft, despite the
best efforts of the Contractor to correct the Defect, the provisions of Article
11.2 and Article 12, relating to liquidated damages, shall apply, as appropriate
in addition to the remedies in this Article 13.
13.6
After notification of a Defect to the Contractor, the Parties may jointly elect
in writing, pursuant to Article 27, not to require correction or replacement of
such items or services or to waive the Defects noted for the Replacement
Satellite, if any, which has not been Launched. In such event the Contractor, if
required by ▇▇▇▇▇ but pursuant to the arrangements set forth in Article 13.2,
shall repay such portion of the Contract Price as is equitable in the
circumstances.
13.7
Subject to the provisions of any applicable law, the Contractor agrees to
enforce any manufacturer's warranty given to it in connection with any Work to
be provided under the ORION 2 Contract and the Contractor shall assign to ORION
warranty protection or pledge to
ORION any proceeds therefrom in respect of that Work and other items as are
given to the Contractor by the manufacturers or service providers.
13.8
Notwithstanding any other provision of the ORION 2 Contract, the Contractor
shall advise ORION immediately by telephone and confirm in writing any event,
circumstance or development which materially threatens the quality of the ORION
2 Spacecraft or component part thereof as well as any services or Data and
Documentation to be provided hereunder or the Delivery Dates established.
13.9
For any Defect which does not adversely affect the form, fit, useful life,
reliability or function (i.e., operational performance) of a Transponder, the
Contractor and ORION agree to negotiate a reasonable resolution, subject to
approval by any Financing Entity, which may not require repair of the Defect,
but which may require reasonable compensation to ORION. If the Parties are
unable to reach an agreed resolution within five (5) Business Days of ORION
receiving notice of the Defect from the Contractor ("Notice Date"), the
Contractor shall have the right to elevate the negotiations to Contractor's
Senior Executive and to ORION's Senior Executive. Any resolution reached by
▇▇▇▇▇'s Senior Executive and Contractor's Senior Executive may be subject to
approval by the Financing Entities. In the event the Parties are unable to reach
an agreed resolution or achieve approval of any Financing Entity within fifteen
(15) Business Days of the Notice Date, ORION shall thereafter be able to
exercise all of its rights under this Article 13.
14. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND
INTER-PARTY WAIVER OF LIABILITY
14.1
EXCEPT AS SPECIFICALLY PROVIDED IN THE ORION 2 CONTRACT, THE CONTRACTOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ORION 2 CONTRACT OR THE
PERFORMANCE OF THE CONTRACTOR HEREUNDER OR THE EQUIPMENT OR WORK FURNISHED
HEREUNDER, WHETHER ARISING UNDER LAW OR AT EQUITY. ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS IS EXCLUDED, THE EXPRESS WARRANTIES OF THE CONTRACTOR
CONTAINED IN THE ORION 2 CONTRACT BEING EXCLUSIVE.
14.2
EXCEPT AS OTHERWISE PROVIDED IN THE ORION 2 CONTRACT, IN NO EVENT SHALL EITHER
PARTY OR A PARTY'S AFFILIATES AND ITS AND THEIR SUBCONTRACTORS AND ITS AND THEIR
OFFICERS, EMPLOYEES AND AGENTS, BE LIABLE, IN CONTRACT, IN TORT, OR OTHERWISE
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING AT ANY TIME OR
FROM ANY CAUSE WHATSOEVER, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION, LOSS
OF PROFITS OR REVENUE, LOSS OF FULL OR PARTIAL USE OF ANY EQUIPMENT, LOSSES BY
REASON OF OPERATION OF ANY
DELIVERABLE ITEM AT LESS THAN CAPACITY, DELAYS, COST OF REPLACEMENTS, COST OF
CAPITAL, LOSS OF GOODWILL, CLAIMS OF CUSTOMERS, OR OTHER SUCH DAMAGES.
14.3
THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER WITH RESPECT TO ALL CLAIMS OF
ANY KIND, INCLUDING WITHOUT LIMITATION LIQUIDATED DAMAGES, WHETHER AS A RESULT
OF BREACH OF CONTRACT, WARRANTY, STRICT LIABILITY OR OTHERWISE, AND WHETHER
ARISING BEFORE OR AFTER DELIVERY OF ANY DELIVERABLE ITEM, FOR ANY LOSS FROM THE
ORION 2 CONTRACT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL BE LIMITED TO
THE REMEDIES SET FORTH IN THE ORION 2 CONTRACT AND SHALL IN NO EVENT EXCEED THE
CONTRACT PRICE TOTAL.
14.4
14.4.1
All operations at the launch site pursuant to this Agreement will be subject to
a no-fault, no-subrogation inter-party waiver of liability under terms
substantially similar to those set forth in Article 15.2 of the Launch Agreement
attached hereto as Annex B. Prior to commencement of Launch Services, the
Contractor will provide ORION with evidence reasonably satisfactory to ORION
that each other entity ("Other Users") concurrently conducting operations at
such launch site, including the Launch Vehicle Agency, has agreed to such
inter-party waiver of liability.
14.4.2
If either Party contracts or subcontracts with a third party to provide services
that necessitate the Contractor's or Subcontractor's presence on the launch
site, then such Party will also ensure that such third party agrees to a
no-fault, no-subrogation inter-party waiver of liability and indemnity for
damages it sustains, identical to the Parties' respective undertakings under
this Article 14.4 and Annex B.
14.4.3
In the event that either ORION or the Contractor fails to obtain the aforesaid
inter-party waiver of liability and indemnity from their respective contractors
or subcontractors, then such Party shall indemnify and hold the other Party, the
Other Users of launch services and their respective contractors and
subcontractors harmless from claims brought by such Party's subcontractors with
respect to matters that otherwise would have been covered by the inter-party
waiver of liability.
14.4.4
Notwithstanding any other term or provision contained in the Contract, this
Article 14.4 shall survive the completion or termination of this ORION 2
Contract in any manner whatsoever.
14.4.5
The Parties will take such further actions as may be required to implement the
provisions of this Article 14.4, including the execution of such agreements and
waivers as are customarily used with respect to operations at the launch site
and are consistent with the provisions of this Article 14.4.
15. ORION 2 SPACECRAFT IN-ORBIT PERFORMANCE WARRANTY
15.1 Total Amount at Risk
The Total Amount at Risk shall be placed at risk by the Contractor against
failure by the ORION 2 Spacecraft's Transponders to meet the criteria for
Satisfactorily Operating Primary Transponders as set forth in Article 15.3.1.
The Total Amount at Risk shall be adjusted pro rata should the Contract Price be
modified pursuant to Article 5.2 or otherwise modified by an Amendment to the
ORION 2 Contract.
15.2 In-Orbit Performance Warranty
15.2.1
The Contractor warrants that the ORION 2 Spacecraft will provide thirty (30)
Satisfactorily Operating Primary Transponders at and after its Final Acceptance
pursuant to Article 9 hereof for a period of five (5) years commencing upon the
date of its Final Acceptance (the "In-Orbit Performance Warranty Period"). To
the extent that the ORION 2 Spacecraft fails to provide said capability, the
Contractor shall pay ORION as damages liquidated in their amounts and not as a
penalty, an amount which shall be calculated as specified below up to the Total
Amount at Risk.
15.2.2
Upon Final Acceptance, as defined in Article 9 hereof, the Total Amount at Risk
shall be earned and retained by the Contractor in the manner and to the extent
provided hereunder:
(a) The Initial Incentive Amount and the Monthly Amounts shall be adjusted
pro rata should the Contract Price be modified pursuant to Article 5.2
or otherwise modified following the agreement between the Parties of an
Amendment to the ORION 2 Contract pursuant to Article 27 hereof.
(b) The Initial Incentive Amount shall be earned and retained by the
Contractor if, and only if, at Final Acceptance, the ORION 2 Spacecraft
has________ Satisfactorily Operating Primary Transponders and a
propellant lifetime as calculated in accordance with Part 3(D) of at
least the Maneuver Lifetime less________ year. Contractor shall not be
liable for damages under this Article 15.2.2(b) where its failure to
meet such propellant lifetime requirement is due to a malfunction of
the Launch Vehicle operation or where its failure to meet the ________
Satisfactorily Operating Transponder requirement is due to the
Launch environment exceeding the ORION 2 Spacecraft on-ground test
requirements as specified in Part 3(C).
(c) The Monthly Amount corresponding and assigned to each calendar month of
operation during the In-Orbit Performance Warranty Period shall be
earned and retained by the Contractor according to the number of
Satisfactorily Operating Primary Transponders which the ORION 2
Spacecraft has, as provided in Table 15.2 hereof. Contractor shall not
be liable for damages under this Article 15.2.2(c) to the extent of the
number of Transponders ("Launch-Damaged Transponders") that, at Final
Acceptance, are not Satisfactorily Operating Transponders due to the
Launch environment exceeding the ORION 2 Spacecraft on-ground test
requirements as specified in Part 3(C); in such case, Table 15.2 shall
be adjusted by decreasing the number of Satisfactorily Operating
Transponders required to earn each specified proportion of the Monthly
Amount by the number of Launch-Damaged Transponders.
TABLE 15.2
Number of Satisfactorily Operating Proportion of Monthly Amount Earned (%)
Primary Transponders
----------------------------------------------------------- ---------------------------------------------------------
0
----------------------------------------------------------- ---------------------------------------------------------
(d) In the event that the Initial Incentive Amount shall not have been
earned by the Contractor, as specified in subparagraph (b) above, or
any of the Monthly Amounts are not earned by the Contractor during the
relevant time period, as specified in subparagraph (c) above, those
amounts (as appropriate) shall be repaid by the Contractor to ORION.
Payment shall be due thirty (30) Calendar Days after the date of
receipt by the Contractor of a telefaxed invoice (which shall be
followed by the airmailed original plus one copy) from ORION; interest
shall be paid (at the rate specified in Article 43) on any amounts not
paid when due. Invoices shall be accompanied by sufficient data to
support ▇▇▇▇▇'s claim. ORION may offset any such payments not made by
the
Contractor against any outstanding balance due under the ORION 2
Contract. The Contractor shall be deemed to have accepted the invoice
ten (10) Business Days after receipt of the invoice unless, within such
time period, it notifies ORION of a dispute. The Contractor shall pay
any undisputed part of an invoice.
15.3 Satisfactorily Operating Primary Transponder
15.3.1
If a Primary Transponder does not satisfy the requirements of a Satisfactorily
Operating Primary Transponder, but ORION nevertheless elects to use such Primary
Transponder for Revenue-earning purposes, then, where the Revenue (or equivalent
consideration) received by ORION for such Primary Transponder in any one
calendar monthly period is less than the Monthly Amount at Risk for such Primary
Transponder, the Contractor shall, in the succeeding month, pay the difference
between the said Monthly Amount at Risk for such Primary Transponder and ORION's
actual monthly Transponder Revenue for such calendar monthly period. In no event
shall any one monthly payment by the Contractor under this Article 15.3.1 exceed
the Monthly Amount at Risk for such Primary Transponder. In the event that a
Primary Transponder is determined not to be a Satisfactorily Operating Primary
Transponder but is later used for Revenue-earning purposes, ▇▇▇▇▇ agrees to
advise the Contractor within seven (7) Business Days after commencing such use.
15.3.2
For the purposes of this Article, in determining whether a Primary Transponder
is a Satisfactorily Operating Primary Transponder no account shall be taken of
any period of unavailability:
(a) attributable to ORION 2 Spacecraft maintenance activities, station
keeping maneuvers, payload reconfiguration for business purposes or
station change maneuvers; or
(b) less than one one-hundredth percent (0.01%) outage per month; or
(c) attributable to communications link fading due to external causes,
including but not limited to weather; or
(d) arising directly or indirectly as a consequence of any negligent act or
omission of ORION or any of its agents, assignees, Consultants,
employees, or customers; or
(e) attributable to earth station sun blinding.
15.4
15.4.1
All measurements, computations and analyses, for the purpose of determining
whether a Primary Transponder is a Satisfactorily Operating Primary Transponder
shall be performed by ORION or its Consultants, provided that the Contractor
may, at its expense, assist in determining the nature of anomalies and
corrective measures. The Contractor shall for this purpose be given access to
any data collected by ▇▇▇▇▇.
15.4.2
If ORION desires, following Final Acceptance, to make any changes to the ORION 2
Spacecraft's in-orbit procedures, ORION shall notify the Contractor in writing
of same and the Contractor shall have the right to approve such proposed
changes. The Contractor shall not unreasonably withhold such approval and shall
work with ▇▇▇▇▇ in good faith to evaluate the proposed changes within a
reasonable time period. Notwithstanding Article 27.3 hereof, if the Contractor
reasonably concludes that in determining whether to approve the proposed changes
to the said in-orbit procedures it will incur a cost in excess of Five Thousand
Dollars ($5,000), the Contractor shall promptly inform ▇▇▇▇▇ within fifteen (15)
Calendar Days as to the estimated cost and a reasonable time for completion. If
▇▇▇▇▇ requests the Contractor to make such determination, the Contractor shall
immediately commence work and shall be entitled to claim and shall be paid by
ORION all such reasonable costs plus a profit of ten percent (10%). In addition,
if ORION proceeds with a change in the in-orbit procedures without Contractor's
approval or the Contractor reasonably considers that a proposed change after
approval would adversely affect the ORION 2 Spacecraft's operational ability,
characteristics, lifetime, propellant, power or station keeping abilities, the
Parties shall enter good faith negotiations to determine what equitable
consideration in lieu of potential or actual lost In-Orbit Performance Warranty
payments shall be provided to the Contractor.
15.5
The rights and remedies under this Article are exclusive for the failure of the
ORION 2 Spacecraft and/or its Primary Transponders after Final Acceptance to
meet the criteria for a Satisfactorily Operating Primary Transponder and in
substitution of any other rights and remedies ORION has under the ORION 2
Contract or otherwise at law as a result of such failure.
16. SUBCONTRACTS
16.1
The Contractor has represented that in the performance of the Work required by
the ORION 2 Contract, it will be necessary for the Contractor or its
Subcontractors to enter into the following Major Subcontracts. The Contractor
shall select the Major Subcontractors and ORION shall be provided with copies of
the technical content of all Major Subcontracts and with a copy of the full
Launch Agreement promptly upon execution thereof.
Initially, the Major Subcontractors are as provided below:
------------------------------------- ----------------------------- -------------------------------------------------
Name of Major Subcontractor Location Description of Work
------------------------------------- ----------------------------- -------------------------------------------------
Lockheed ▇▇▇▇▇▇ USA Launch Vehicle
NEC Japan KU Band Transponders
COMDEV Canada Multiplexers, Switching
__________* __________ Antennas
Fokker Netherlands Solar Array
__________* __________ Propellant Tank
__________* __________ Battery
__________* __________ Apogee Kick Motor
*Contractor shall comply
with Article 16.2 in selection
of these Major Subcontractors
------------------------------------- ----------------------------- -------------------------------------------------
16.2
In the event that the Contractor or a Subcontractor selects or has a necessity
to terminate any Major Subcontract or substitute Subcontractors on any Major
Subcontract, the Contractor shall consult with ORION and discuss any and all
such actions prior to implementation. Subject to Article 16.3, ORION shall have
no right of prior approval of Contractor's actions.
16.3
In the event that the Contractor has a necessity to terminate or substitute
Lockheed ▇▇▇▇▇▇, or NEC or COMDEV, Limited the Contractor shall first consult
with and obtain the approval of ORION. If ▇▇▇▇▇ does not approve such actions
and the Contractor deems such actions to be necessary to meet its performance
obligations under the ORION 2 Contract, then the Contractor may take such action
without ORION's approval.
16.4
In the event that the Contractor or a Subcontractor which has been awarded a
Major Subcontract has reason to waive, or to agree to, a deviation in any of the
technical requirements of any Major Subcontract which will cause a material
impact on the technical parameters of the ORION 2 Spacecraft as set forth in
Part 3(A), such variations shall be handled in accordance with Part 3(B) and
shall require a formal Amendment to this ORION 2 Contract pursuant to Article
27.
16.5
Nothing in the ORION 2 Contract shall be construed as creating any contractual
relationship between ORION and any Subcontractor. The Contractor is fully
responsible to ORION for the acts and omissions of Subcontractors and of all
persons used by the Contractor or a Subcontractor in connection with the
performance of the Work under the ORION 2 Contract. Any failure by a
Subcontractor to meet its obligations to the Contractor shall not constitute a
basis for Excusable Delay, except as provided in Article 12 hereof, and shall
not relieve the Contractor from meeting any of its obligations under the ORION 2
Contract.
17. INDEMNIFICATION
17.1
The Contractor shall indemnify and hold ORION, its officers, employees,
Consultants, and assignees ("ORION Associates") harmless from and against any
and all losses, damages, liabilities or demands (including reasonable legal
fees) arising out of suits or claims brought by third parties, including the
employees and Consultants of ORION, the Contractor, and its Subcontractors, on
account of damage to property and injury to persons (including sickness and
death), resulting from any act or omission of the Contractor or its
Subcontractors in the performance of the Work, or an act or omission of ORION,
occurring at any installation of the Contractor or any Subcontractor, and at its
expense shall defend any suits or other proceedings brought against said
indemnitees, on account thereof, and shall pay all expenses (including
reasonable legal fees) and satisfy all judgments which may be incurred by or
rendered against them, or any of them, in connection therewith; provided that
ORION notifies the Contractor within ten (10) Business Days, in writing, after
ORION management has actual notice of any such suit or a written threat of such
suit within twenty (20) Business Days of such claim and permits the Contractor
to answer the claim or suit and defend the same and gives the Contractor
authority and such assistance and information as is available to ORION or the
defense of such claim or suit, and provided further that ORION does not by an
act (including any admission or acknowledgment or omission) prejudice such
defense. Any such assistance or information which is furnished by ▇▇▇▇▇ at the
written request of the Contractor is to be at the Contractor's expense. With
regard to suits or claims brought by or on behalf of employees or Consultants of
ORION, Contractor's indemnification obligations shall be limited to the amount
of insurance required to be maintained by Contractor under Article 18.
Notwithstanding the foregoing, in no event shall the Contractor have any
indemnification liability regarding any claims or suits of any ORION customers.
17.2
ORION shall have a reciprocal obligation to indemnify the Contractor to the
extent described in Article 17.1, except that such obligation shall not apply
with respect to claims for acts or omissions of ORION or its Consultants
occurring at any installation of the Contractor or any Subcontractor.
17.3
If the Contractor insures against any loss or damage which the Contractor may
suffer in respect of which the Contractor is required to indemnify ORION or an
ORION Associate pursuant to Article 17.1, it shall be a condition that the
Contractor arrange for the insurer to waive its right of subrogation against
ORION and every ORION Associate. ▇▇▇▇▇ shall be entitled to require proof from
time to time that the Contractor has complied with its obligations under this
Article. In the event that the Contractor does not comply with such obligations,
the indemnity referred to in Article 17.1 shall extend to any claim which may be
made by an insurer pursuant to an alleged right of subrogation.
17.4
In respect to every insurance referred to in Article 18, the Contractor shall
provide documentary evidence (which may be the insurance policies themselves)
that ▇▇▇▇▇'s insurable interest has been noted by the Contractor's insurers.
17.5
Without prejudice to ▇▇▇▇▇'s rights under Article 26, ORION shall hold the
Contractor harmless from and against any suit or claims which may arise in
connection with the use, operation, performance, nonperformance, failure or
degradation of the ORION 2 Spacecraft after Final Acceptance or for other
Deliverable Items after Delivery, provided that the Contractor notifies ORION
within ten (10) Business Days in writing after it receives notice of any such
suit or within twenty (20) Business Days of such claim and permits ORION to
answer the claim or suit and defend the same and gives ORION authority and such
assistance and information as is available to the Contractor for the defense of
such claim or suit, and provided further that the
Contractor does not by an act (including any admission or acknowledgment or
omission) prejudice such defense. Any such assistance or information which is
furnished by the Contractor at the written request of ORION is to be at ▇▇▇▇▇'s
expense. The foregoing shall not be deemed to release the Contractor from any of
its obligations under Articles 9, 15 and 26 hereof.
18. INSURANCE
18.1 Insurance of the Work
18.1.1
Before the Contractor commences the Work, the Contractor shall have an insurance
policy covering the ORION 2 Spacecraft and all component parts thereof and all
materials of whatever nature used or to be used in completing the Work
(collectively, the "Loss Items") against all risks, loss or damage prior to
Intentional Ignition (including coverage against damage or loss caused by earth
movement, flood, boiler, turbine and machinery accidents) subject to normal "All
Risks Policy" exclusions. ORION and any Financing Entity shall be named as loss
payee, but only in relation to all risks, loss or damage to the Loss Items.
ORION, and each Financing Entity, if any, shall be named insured on any such
policy in relation to all risks, loss or damage to the Loss Items. The details
of the insurer and the relevant extracts of the policy shall be submitted to
ORION.
18.1.2
All items shall be insured for a sum not less than their replacement value or
their price under the ORION 2 Contract, whichever is the greater. Such insurance
coverage shall be maintained by the Contractor up to the point of Intentional
Ignition of the ORION 2 Spacecraft ordered by ORION pursuant to the ORION 2
Contract and shall provide (1) coverage for removal of debris, and insuring the
structures, machines, equipment, facilities, fixtures and other properties
constituting a part of the project, (2) transit coverage, including ocean marine
coverage (unless insured by the supplier), and (3) off-site coverage covering
any key equipment, and (4) off-site coverage covering any property or equipment
not stored on the construction sites. The deductible for all such insurance
shall not exceed Two Hundred Fifty Thousand Dollars ($250,000).
18.1.3
The insurance of the Work as required by this Article 18, whether effected by
the Contractor or ORION, shall not limit, bar or otherwise affect the liability
and obligation of the Contractor to complete the Work and Deliver the
Deliverable Items in accordance with the ORION 2 Contract. The Contractor's
insurers shall waive all rights of subrogation against ORION save those for
which ▇▇▇▇▇ indemnifies the Contractor pursuant to Article 17.2 hereof.
18.1.4
The Contractor agrees to assign to any Financing Entity the proceeds of the
Contractor's "All Risks Policy" with regard to any damage incurred on the ORION
2 Spacecraft where such damage would result in an Excusable Delay which,
together with previous Excusable Delays resulting from damage covered by the
Contractor's "All Risks Policy," would be greater than one hundred eighty (180)
Calendar Days.
18.2 Public Liability Insurance
18.2.1
Before the Contractor commences the Work, the Contractor shall have a Public
Liability Policy of insurance. The policy shall cover the Contractor and all
Subcontractors employed from time to time in relation to the Work and
performance of the ORION 2 Contract for their respective rights and interests
and cover their liabilities to third parties.
18.2.2
The Contractor's insurers shall waive all rights of subrogation against ORION
save those for which ▇▇▇▇▇ indemnifies the Contractor pursuant to Article 17.2
hereof.
18.2.3
The Public Liability Policy of insurance shall be for an amount not less than
One Hundred Million Dollars ($100,000,000) in respect of any one occurrence and
shall be effected with reputable insurers. The policy shall be maintained until
all Work pursuant to the ORION 2 Contract, including remedial work, is
Delivered. Such insurance shall not contain any exclusion which denies coverage
for third party injuries to persons or damage to property of others arising out
of preparation of maps, plans, designs, specifications or the performance of
inspection services or out of any other services to be performed by the
Contractor under the ORION 2 Contract.
18.2.4
ORION and the Financing Entity, if any, shall be named as named insured on such
Public Liability insurance policy.
18.3 Insurance of Employees
18.3.1
Before commencing the Work, the Contractor shall insure against liability for
death or injury to persons employed by the Contractor, including liability
imposed by statute and at common law.
The insurance coverage shall be for an amount in the greater of (i) Ten Million
Dollars ($10,000,000) or (ii) as required by law, and shall be maintained until
all Work pursuant to the ORION 2 Contract, including remedial work, is
Delivered. The Contractor shall ensure that all Subcontracts contain a similar
provision.
18.3.2
The Contractor's insurers shall waive all rights of subrogation against ORION
save those for which ▇▇▇▇▇ indemnifies the Contractor pursuant to Article 17.2
hereof.
18.4 Comprehensive Automobile Liability
18.4.1
Before commencing the Work, the Contractor shall self-insure or Contractor shall
insure against liability for claims of personal injury (including bodily injury
and death) and property damage covering all owned, leased, non-owned and hired
vehicles used at any of the Contractor's facilities in the performance of the
Contractor's obligations under the ORION 2 Contract in an insurance amount not
less than Five Million Dollars ($5,000,000) per occurrence for combined bodily
injury and property damage.
18.4.2
The Contractor's insurers shall waive all rights of subrogation against ORION
save those for which ▇▇▇▇▇ indemnifies the Contractor pursuant to Article 17.2
hereof.
18.5 Launch Insurance
ORION shall have the responsibility to procure Launch Insurance. Failure to
secure a binder for Launch Insurance by sixty (60) days before the Launch Date
shall be deemed an Excusable Delay, which Excusable Delay shall extend from the
sixtieth (60th) day before the Launch Date until the date such insurance is so
secured and written verification thereof is provided to the Contractor.
18.6 Inspection and Provisions of Insurance Policies
18.6.1
Before the Contractor commences the Work, and whenever requested in writing by
▇▇▇▇▇, the Contractor shall produce evidence that the insurance required by
Articles 18.1, 18.2, 18.3 and 18.4 has been effected or is being maintained.
Contractor shall provide ORION with copies of all required insurance policies
and shall provide ORION with written notice no later than thirty (30) Calendar
Days before the expiration date of each such policy.
18.6.2
If, after being requested in writing by ▇▇▇▇▇ to do so, the Contractor fails to
produce evidence of compliance with the insurance obligations within fourteen
(14) Calendar Days, ORION may effect and maintain the insurance and pay the
premiums. The amount paid shall be a debt due from Contractor to ORION and may
be offset against any payments due the Contractor by ▇▇▇▇▇.
18.6.3
The Contractor shall, as soon as practicable, inform ▇▇▇▇▇ in writing of any
occurrence that may give rise to a claim under a policy of insurance required by
Articles 18.1, 18.2, 18.3, 18.4 or 18.5 and shall keep ORION informed of
subsequent developments concerning the claim. The Contractor shall ensure that
Subcontractors similarly inform ORION of any such occurrences through the
Contractor. Each Party shall provide to the other Party any information which
may reasonably be required to prepare and present an insurance claim.
19. REPLACEMENT SATELLITE
19.1
The Contractor agrees to provide an additional satellite ("Replacement
Satellite") delivered in-orbit no later than twenty-one and one quarter (21.25)
months after receipt of an order from ORION (but in no case earlier than
thirty-four and one quarter (34.25) months after NPD). Orion may place such
order at any time during the performance of the ORION 2 Contract but in no event
earlier than seven (7) months after receipt by the Contractor of the applicable
Total Advance Funding in Article 19.2 or later than sixty (60) Calendar Days
after the ORION 2 Spacecraft is determined to be a Constructive Total Loss
(should that event occur). The in-orbit delivery dates shall be conditioned on
ORION having ordered and simultaneously paid for the Long-Lead Items (and
associated work) set forth in Article 19.2 by the dates set forth therein.
19.2
The Contractor agrees to deliver the Replacement Satellite on the schedule set
forth in Article 19.1 provided ▇▇▇▇▇ makes the following Advance Funding
payments for Long-Lead Items on the schedule set forth below:
Fixed Charge at NPD --____________________________________________________
Replacement Satellite Total Advance Funding
Order Period Variable Charge (Fixed and Variable Charges)
--------------------- --------------- ----------------------------
ORION 2 NPD
ORION 2 NPD + 6 months
ORION 2 NPD + 12 months
ORION 2 NPD + 18 months
ORION 2 NPD + 21 months
19.3
The Contractor shall furnish the Replacement Satellite in accordance with the
provisions of the documents which constitute the ORION 2 Contract, with the
dates therein adjusted (if necessary) for the later timeframe of the Replacement
Satellite, and with the spacecraft test program revised as follows:
Deletion of Sine Vibration Test (except Test in the thrust-axis)
Deletion of EMC Test (however, the ESD Test is to be performed)
Deletion of Separation Shock Test Rescheduling of adapter
fit/fail check to Launch Site
Reduction of Thermal Vacuum Test to one balance phase only
Reduction in levels/durations from "Protoflight" to "Flight
Acceptance"
19.4
The firm fixed price for the Replacement Satellite ("Replacement Satellite
Price"), assuming an order had been placed by ORION on or before 1 March 1997,
is as follows:
(a) In U.S. Dollars --The firm fixed price is _____________________________
_________________________________________________________, or
(b) The sum of the following currency amounts:
US$
GB(pound)
Yen
D Fl
Fr F
DM
After1 March 1997, upon request of ORION, Contractor shall provide ORION with a
firm fixed price in U.S. dollars for the Replacement Satellite at least ten (10)
Calendar Days prior to the time of order of the Replacement Satellite, which
firm fixed price shall exceed the firm fixed price set forth in (a) above only
to the extent of currency fluctuations subsequent to1 March 1997; in any event,
the price in U.S. dollars shall not exceed________________________
____________________________________________________________________ excluding
the inflation adjustment described in the second succeeding paragraph.
At the time of order of the Replacement Satellite, ORION shall advise the
Contractor which of the above pricing approaches (U.S. dollars or sum of
currencies) it selects.
Where ORION orders the Replacement Satellite after 1 March 1997, the prices set
forth in this Article 19.4 shall be increased by a monthly inflation factor of
one-third of one percent (0.33%) from March 1997 to the month in which ORION
places the Replacement Satellite Order.
The Replacement Satellite Price set forth in this Article 19.4 shall be reduced
by the amount of any Advance Funding payments made by ORION under Article 19.2
hereof.
The Replacement Satellite Payment Plan and Termination Schedule shall be
negotiated between the Parties prior to ORION ordering the Replacement
Satellite; the Payment Plan shall match Contractor's actual expenditure profile
so as to avoid prepayments and financing costs.
Selection of the launch vehicle and launch services contractor will be made by
ORION (with the concurrence of Contractor) in sufficient time to permit
Replacement Satellite delivery on the schedule set forth in Article 19.1. The
prices for both such items will be identified and agreed as a part of such
process.
ORION shall provide for launch insurance for the Replacement Satellite.
Except as otherwise required by the terms of this Article 19, contract terms for
the Replacement Satellite will be identical to the ORION 2 Contract, with risk
elements (e.g., liquidated damages for late delivery and warranty payback
incentives) adjusted to the change in price from the ORION 2 Spacecraft so as to
represent the same percentage risk.
19.5
Where the Advance Funding for the Replacement Satellite has been paid by ▇▇▇▇▇,
but ▇▇▇▇▇ fails to order the Replacement Satellite by the time required in this
Article 19, the option for the Replacement Satellite shall no longer be
effective and Contractor shall deliver to ORION, within thirty (30) Calendar
Days of the expiration date of the option, the Long-Lead Items set forth in Part
4, said Long-Lead items to be mutually agreed to by the Parties no later than 15
May 1997.
20. TERMINATION FOR CONVENIENCE
20.1.1
ORION may, by notice in writing, and without giving any reason or showing cause
therefor, at any time prior to Launch of the ORION 2 Spacecraft, terminate the
ORION 2 Contract with respect to the Work in its entirety and the Contractor
shall immediately cease Work accordingly, and shall similarly direct its
Subcontractors.
20.1.2
In the event of such termination under this Article, ORION shall be obligated to
pay (i) to the Contractor an amount equal to the sum of the Termination
Liability Amounts for the ORION 2 Spacecraft and Launch Services as specified in
Part 1(B) corresponding to the month in which termination occurs less the
greater of the Advance Payment or the sum of the Milestone Payments actually
received by the Contractor, provided that, where such amount is a negative
number, the Contractor shall pay such amount promptly to ORION within twenty
(20) Calendar Days; and (ii) to the Launch Vehicle Agency an amount equal to the
Termination Liability Amount for the Launch Vehicle as specified in Part 1(B)
corresponding to the month in which Termination occurs less any Progress Payment
actually received by the Launch Vehicle Agency.
The Contractor shall submit an invoice to ORION within sixty (60) Calendar Days
after the termination date which shall specify the amounts due to the Contractor
and the Launch Vehicle Agency from ORION pursuant to this Article 20.1.2 and the
Contractor and the Launch Vehicle Agency shall immediately be entitled to
payment by ORION of such amounts immediately thereafter. Payment by the
Financing Entities of such amount to the Contractor and the Launch Vehicle
Agency shall relieve ORION from its obligation to make such payments.
20.2
The amount payable by ▇▇▇▇▇ to the Contractor pursuant to Article 20.1 shall
constitute a total discharge of ORION's liabilities to the Contractor for
termination pursuant to this Article 20.
20.3
If the ORION 2 Contract is terminated as provided in this Article and full
payment made in accordance with Articles 20.1, ORION may require the Contractor
to transfer to ORION, in the manner and to the extent directed by ▇▇▇▇▇, title
to and possession of any items comprising all or any part of the Work terminated
(including, without limitation, all Work-in-progress and all inventories), and
the Contractor shall, upon the direction and at the expense of ORION, protect
and preserve property in the possession of the Contractor or its Subcontractors
in which ORION has an interest and shall facilitate access to and possession by
ORION of items comprising all or any part of the Work so terminated.
If ORION so requests or ORION has not taken delivery of property in which it has
an interest within sixty (60) Calendar Days after termination, or such longer
period as is agreed between the Parties, the Contractor shall make a reasonable,
good faith effort to sell such items and to remit any sales proceeds to ORION,
less a deduction for costs of disposition reasonably incurred by the Contractor.
21. REMEDIES FOR DEFAULT
21.1
(a) If, at any time prior to Intentional Ignition in respect of the ORION 2
Spacecraft (but not thereafter), the Contractor has failed to make
adequate progress toward the completion of the ORION 2 Spacecraft and
such failure does not result from Excusable Delay, such that the
Contractor, due to causes related to the ORION 2 Spacecraft, and
regardless of the status of the Launch Vehicle (or associated services
provided by the Launch Vehicle Agency), will not be able to Launch the
ORION 2 Spacecraft by ninety (90) Calendar Days after the Delivery Date
(as such date may have been modified in accordance with the ORION 2
Contract), then ORION shall be entitled to deliver to the Contractor a
Demand for correction of the failure within thirty (30) Calendar Days
after ▇▇▇▇▇ learns of such failure. Such Demand shall state full
details of the failure. Within ten (10) Calendar Days after receipt of
the Demand, or such longer time as the Parties agree, the Contractor
shall submit to ORION a Correction Plan for achieving Final Acceptance
not later than two hundred and seventy (270) Calendar Days after the
Delivery Date provided that no Correction Plan shall ever result in a
change to a Delivery Date as specified in Article 8, unless the Parties
agree in accordance with Article 27. If the Correction Plan does not
reasonably correct or offset the effect of the failure so as to
demonstrate that Final Acceptance can be achieved not later than two
hundred and seventy (270) Calendar
Days after the ORION 2 Spacecraft Delivery Date, ▇▇▇▇▇ may reject the
Correction Plan within thirty (30) Calendar Days after receipt, in
which case the Parties shall negotiate in good faith to develop a
Correction Plan which will be satisfactory to both Parties. If ▇▇▇▇▇
does not reject the Correction Plan within thirty (30) Calendar Days
after receipt, the ORION 2 Contract shall be deemed modified in
accordance with the Correction Plan and the failure shall be deemed
cured so long as Contractor complies with the terms of such Correction
Plan.
(b) If, in addition to the Contractor's failure to make adequate progress
toward completion of the ORION 2 Spacecraft due to the causes set forth
in (a) above, the Contractor is experiencing any delays other than
Excusable Delays such that the Contractor will not be able to Launch
the ORION 2 Spacecraft in order to achieve Final Acceptance within
three hundred sixty-five (365) Calendar Days after the ORION 2
Spacecraft Delivery Date (as may have been modified in accordance with
this ORION 2 Contract), then ▇▇▇▇▇ shall be entitled to deliver to the
Contractor a Demand for correction of the failure within thirty (30)
Calendar Days after ▇▇▇▇▇ learns of such failure. Such Demand shall
state full details of the failure. Within ten (10) Calendar Days after
receipt of the Demand, or such longer time as the Parties agree, the
Contractor shall submit to ORION a Correction Plan for achieving Final
Acceptance not later than three hundred and sixty-five (365) Calendar
Days after the ORION 2 Spacecraft Delivery Date provided that no
Correction Plan shall ever result in a change to a Delivery Date as
specified in Article 8, unless the Parties agree in accordance with
Article 27. If the Correction Plan does not reasonably correct or
offset the effect of the failure so as to demonstrate that Final
Acceptance can be achieved not later than three hundred and sixty-five
(365) Calendar Days after the ORION 2 Spacecraft Delivery Date, ORION
may reject the Correction Plan within thirty (30) Calendar Days after
receipt, in which case the Parties shall negotiate in good faith to
develop a Correction Plan which will be satisfactory to both Parties.
If ▇▇▇▇▇ does not reject the Correction Plan within thirty (30)
Calendar Days after receipt, the ORION 2 Contract shall be deemed
modified in accordance with the Correction Plan and the failure shall
be deemed cured so long as Contractor complies with the terms of such
Correction Plan.
21.2
In the event (i) the Contractor does not submit a Correction Plan to ORION
within ten (10) Calendar Days after receipt of a Demand, or (ii) the Parties
cannot develop a Correction Plan which reasonably corrects or offsets the effect
of the failure, or which otherwise is satisfactory to both Contractor and ORION
within twenty (20) Calendar Days after the rejection of the Correction Plan,
ORION may, as its sole remedy, elect one of the remedies set forth in Article
21.3 below, and the Contractor shall forthwith notify ORION of completed Work
and all Work-in-progress relating to the ORION 2 Spacecraft in respect of which
ORION exercises its rights under this Article. ORION shall elect one of the
remedies specified in Article 21.3 (i) within forty (40) Calendar Days after the
Contractor's receipt of a Demand, if the Contractor
fails to submit a Correction Plan, or (ii) within thirty (30) Calendar Days
after the deadline for the Parties' joint development of a satisfactory
Correction Plan.
21.3 ▇▇▇▇▇'s remedies as referenced in Article 21.2 are as follows:
(a) ORION may terminate the ORION 2 Contract with respect to the ORION 2
Spacecraft and may cause the ORION 2 Spacecraft to be completed by
another party, and as total damages (in addition to any applicable
liquidated damages for delay levied pursuant to Article 11 and/or
Article 12 up to the date of termination) may charge the Contractor for
any reasonable increased cost incurred in connection therewith in
excess of the Contract Price; provided that the Contractor's liability
under this paragraph shall not exceed the Contract Price (without
regard to any payments made to the Contractor to the date of
termination). The amount payable by the Contractor shall be verified at
the Contractor's request and expense by an internationally recognized
firm of accountants appointed by the Contractor for that purpose
subject to approval of ORION, such approval not to be unreasonably
withheld or delayed. A demand for any such excess costs must be made
within one (1) year after the termination and must be paid within sixty
(60) Calendar Days of receipt of such verification. In the event of
election by ▇▇▇▇▇ under this paragraph, the Contractor shall complete
the Launch Vehicle and Launch Services portion of the ORION 2 Contract
(as it may need to be amended as a consequence of ORION's election) and
shall be liable for any reasonable additional costs over and above the
Contract Price for those Launch Vehicle and Launch Services so affected
as set forth in Article 5, as adjusted. The Contractor's right to
verification shall be without prejudice to the rights of either Party
under Article 30. The report issued by the accountants may be used by
either Party during any arbitration proceedings, but the report shall
not be binding on the arbitrator(s). By notice in writing received by
▇▇▇▇▇ no later than sixty (60) Calendar Days after receipt of ▇▇▇▇▇'s
invoice pursuant to this Article 21.3, the Contractor may dispute the
amount of said invoice. In the event that the Contractor does not so
notify ORION that it disputes ORION's invoice, the Contractor shall be
deemed to have accepted said invoice; or
(b) ORION may terminate the ORION 2 Contract, and in which case the
Contractor shall pay ORION (i) all amounts previously paid by ORION to
the Contractor and (ii) applicable liquidated damages for delay levied
pursuant to Article 11 and/or Article 12 up to the date of termination.
Title to the ORION 2 Spacecraft shall vest or remain vested in the
Contractor.
21.4
The remedies provided in Article 21.3 are exclusive and in substitution for any
other rights and remedies under the ORION 2 Contract or otherwise at law or
equity with respect to such defaults. No termination rights shall be available
to ORION in respect of the ORION 2 Spacecraft after the same has been Launched.
21.5
If the Contractor refuses or fails to observe or perform any material duty or
obligation in the ORION 2 Contract, except those obligations covered in Articles
21.1 through 21.3 and other obligations of the Contractor for which particular
remedies are specified elsewhere in the ORION 2 Contract as being exclusive,
then ORION shall be entitled to deliver to the Contractor a Demand that it
correct the breach within thirty (30) Calendar Days. Such Demand shall state
fully the details of the breach. Within ten (10) Calendar Days after receipt of
the Demand, or such longer time as the Parties agree, the Contractor shall
submit to ORION a formal Correction Plan. If the Correction Plan does not
reasonably correct or offset the effect of the breach in a timely manner, ▇▇▇▇▇
may reject the Correction Plan within thirty (30) Calendar Days after receipt,
in which case the Parties shall negotiate in good faith to develop a Correction
Plan which will be satisfactory to both Parties. If ▇▇▇▇▇ does not reject the
Correction Plan within thirty (30) Calendar Days after receipt, the ORION 2
Contract shall be deemed modified in accordance with the Correction Plan and the
breach shall be deemed cured so long as Contractor complies with the terms of
such Correction Plan. In the event the Contractor fails to submit a Correction
Plan or the Parties cannot develop a Correction Plan which reasonably corrects
or offsets the effect of the breach in a timely manner, or which otherwise is
satisfactory to both Contractor and ORION within twenty (20) Calendar Days after
the Demand, ORION shall be entitled to any remedies available at law or equity,
subject to Article 14.2 hereof and pursuant to the provisions of Article 30.
21.6 Contractor's Right to Terminate
21.6.1
(a) The Contractor shall be entitled to terminate the ORION 2 Contract in
whole or, where severable, in part, if Contractor gives written notice
to ORION of the following event and ORION fails to cure such event
within thirty (30) Calendar Days after receiving such written notice:
default in the payment of any Progress Payment or Milestone Payment or
Termination Liability Amount when the same shall have become due and
payable.
(b) The Contractor shall be entitled to terminate the ORION 2 Contract by
giving written notice to ORION where insurance proceeds are paid to any
Financing Entity pursuant to Article 18.1.4 (All-Risk Insurance), and
such proceeds are not paid over to the Contractor within thirty (30)
Calendar Days of receipt by any Financing Entity.
(c) Except as specified in the ORION 2 Contract, the Contractor shall not
have the right to terminate or suspend the ORION 2 Contract.
21.6.2
In the event of such termination, the Contractor shall be entitled forthwith to
take any or all of the following actions:
(a) treat the ORION 2 Contract as terminated as to any or all of the items
then undelivered or services unperformed and cease or suspend
manufacture of any of the items to be supplied hereunder;
(b) withhold delivery of any of the items to be supplied hereunder until
the Contractor has received full payment under this Article and retain
all sums then paid on account thereof;
(c) cease or suspend performance of any of the services to be provided to
ORION hereunder, except those services which are specifically intended
to be provided in connection with a termination of the ORION 2
Contract; and
(d) take payment of an amount equal to the Termination Liability Amount for
the ORION 2 Spacecraft for the calendar month next following the
calendar month in which the date of termination occurs, less the sum of
the Milestone and Progress Payments actually received by the
Contractor, provided that, where such amount is a negative number, the
Contractor shall refund such amount promptly to ORION within twenty
(20) Calendar Days. Where the Contractor is owed money by ▇▇▇▇▇, the
Contractor shall submit an invoice to ORION within sixty (60) Calendar
Days after the termination date which shall specify the amount due to
the Contractor from ORION pursuant to this Article 21.6 and the
Contractor shall immediately be entitled to full payment by ▇▇▇▇▇
immediately thereafter. Payment by any Financing Entity of such amount
to the Contractor shall relieve ORION from its obligation to make such
payment.
To the extent that full payment has been made therefor, ORION may
require the Contractor to transfer to ORION in the manner and to the
extent directed by ▇▇▇▇▇, title to and possession of any items
comprising all or any part of the Work terminated (including, without
limitation, all Work-in-progress and all inventories), and the
Contractor shall, upon direction of ORION, protect and preserve
property at ORION's expense in the possession of the Contractor or its
Subcontractors in which ORION has an interest and shall facilitate
access to and possession by ORION of items comprising all or part of
the Work terminated. Alternatively, ▇▇▇▇▇ may request the Contractor to
make a reasonable, good faith effort to sell such items and to remit
any sales proceeds to ORION less a deduction for costs of disposition
reasonably incurred by the Contractor for such efforts.
21.7
In all instances, the Party terminating or claiming other remedies shall take
all reasonable steps available to it to mitigate any claim which it may have
against the defaulting Party.
21.8
Except in the case of a default under Article 21.6.1, Article 22.1(a) and
Article 22.3(a), prior to either Party exercising its right to terminate the
ORION 2 Contract under this Article, the Parties agree that ▇▇▇▇▇'s Senior
Executive and the Contractor's Senior Executive, and if mutually agreed, an
independent third party, will meet within fifteen (15) Calendar Days of receipt
of written notice of the dispute by one Party to the other Party to try to
resolve the said dispute. If ▇▇▇▇▇'s Senior Executive and the Contractor's
Senior Executive cannot agree on an appropriate resolution of the dispute, then
the Parties shall resolve their dispute in accordance with the provisions of
Article 30.
21.9
Nothing in this Article 21 shall affect ▇▇▇▇▇'s rights to liquidated damages
under Articles 11 or 12 hereof.
22. TERMINATION IN SPECIAL CASES
22.1 The Contractor shall be deemed to be in default under the ORION 2
Contract if:
(a) it is declared insolvent or bankrupt by a court of competent
jurisdiction, is the subject of any proceedings related to its
liquidation, insolvency or for the appointment of a receiver or an
administrative receiver; or makes an assignment for the benefit of its
creditors or
enters into an agreement for the composition, extension or readjustment
of all or substantially all of its obligations; or
(b) the Contractor has resorted to fraudulent or corrupt practices in
connection with its securing or implementing of the ORION 2 Contract.
22.2
If the Contractor is in default pursuant to Article 22.1, then ORION may
terminate the ORION 2 Contract in accordance with the provisions of Article
21.3.
22.3
ORION shall be deemed to be in default under the ORION 2 Contract if:
(a) it is declared insolvent or bankrupt by a court of competent
jurisdiction, is the subject of any proceedings related to its
liquidation, insolvency or for the appointment of a receiver or an
administrative receiver, makes an assignment for the benefit of all its
creditors or enters into an agreement for the composition, extension or
readjustment of all or substantially all of its obligations; or
(b) it has resorted to fraudulent or corrupt practices in connection with
its securing or implementing of the ORION 2 Contract.
22.4
If ORION is in default pursuant to Article 22.3, then the Contractor may
terminate the ORION 2 Contract in accordance with the provisions of Article
21.6.
23. PUBLICATION OF INFORMATION
23.1
Neither the Contractor, nor ORION nor any of their independent consultants,
officers, employees, agents, contractors, Subcontractors or assignees, shall
publish any material (including articles, films, brochures, advertisements and
photographs), or authorize other persons to publish such material, or deliver
speeches about the Work without the prior written approval of the other Party,
which approval shall not be unreasonably withheld. This obligation shall not
apply to ORION's statement or publication of any sort relating to the
performance specifications or Statement of Work, which are intellectual property
of ORION and may be published as ORION so determines. The above obligation shall
also not apply to information which is publicly available from any Governmental
agencies or which is or otherwise becomes publicly available without breach of
this Agreement. Notwithstanding the foregoing, the Contractor, ORION, and
Subcontractors may make (i) any filings that the Contractor, ORION or a
Subcontractor considers advisable or necessary under applicable securities laws,
including the Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, the rules applicable to the National Market System, or the
securities laws applicable to public companies in the Republic of France (the
"French Securities Laws"), and the Parties shall comply with the provisions of
Article 24.5 with respect thereto, (ii) such other filings as may be required to
be made by any governmental agency or any administrative or judicial body before
which an action affecting the Contractor, ORION, a Subcontractor, any of their
Affiliates or the ORION 2 Spacecraft is pending, and (iii) such other filings as
may be required by applicable law.
23.2
The application for approval to publish any material or deliver speeches about
the Work shall be submitted to the other Party in writing and shall include full
particulars of any intended publication. Upon receipt of the other Party's
agreement in principle to the proposed publication, the applicant shall submit
for final approval by the other Party any material to be published in the form
and context in which it is intended to be used. The other Party may then approve
or decline
to approve publication in whole or in part of the material and at its discretion
may specify a time for publication.
24. CONFIDENTIALITY AND NONDISCLOSURE OF PROPRIETARY
INFORMATION
24.1
During the course of performance of the ORION 2 Contract each Party may have
access to or receive information from the other, such as information concerning
inventions, techniques, processes, devices, discoveries and improvements, or
regarding administrative, marketing, financial or manufacturing activities. All
such information, including any materials or documents containing such
information, whether disclosed orally or otherwise, shall be considered
proprietary and confidential information of the disclosing Party ("Proprietary
Information").
24.2
(a) For the purpose of this Article 24, "Proprietary Information" shall not
include any information which the receiving Party can establish to have
(i) become publicly known without breach of the ORION 2 Contract; (ii)
been given to the receiving Party by a third party who is not obligated
to maintain confidentiality; (iii) been independently developed by the
receiving Party without reference to the Proprietary Information of the
other, as established by documentary evidence; or (iv) been developed
by the receiving Party prior to the date of receipt from the other
Party, as established by documentary evidence.
(b) The Contractor agrees that it will not, for the period specified in
Article 24.3(a), disclose details of the Work to be provided to ORION
hereunder, to the extent that such disclosure would reveal specific
performance information regarding the ORIONSAT system and the ORION 2
Spacecraft or any other information which would materially affect
ORION's commercial interest or the commercial use of the ORIONSAT
System without the prior written consent of ORION which shall not be
unreasonably withheld. Notwithstanding the foregoing, the Parties
expressly agree that the Contractor shall have the unrestricted right
at any time to use and to supply to third parties services or equipment
similar or identical to any Work provided hereunder.
(c) ▇▇▇▇▇ agrees that it will not, for the period specified in Article
24.3(a), disclose Proprietary Information of the Contractor to the
extent that such disclosure would reveal information to a direct
competitor of the Contractor which would materially affect the
commercial interests of the Contractor without the prior written
consent of the Contractor which shall not be unreasonably withheld.
Contractor agrees that for purposes of this Article 24, in the event
that TELESAT and/or COMSAT are engaged as Consultants to
ORION for purposes of the ORION 2 Contract, they shall not be deemed
direct competitors to the Contractor.
24.3
(a) Both during and for a period of three (3) years after the termination
or expiration of the ORION 2 Contract, each Party agrees to preserve
and protect the confidentiality of the Proprietary Information of the
other and all physical forms thereof, whether disclosed before the
ORION 2 Contract is signed or afterward. Neither Party shall disclose
or disseminate Proprietary Information of the other to any third party,
including employees, independent consultants, or Subcontractors unless
such party has (i) a need to know the Proprietary Information for the
purpose of establishing, maintaining, operating, financing or marketing
the ORIONSAT system, and (ii) has executed an agreement obligating the
party to maintain the confidentiality of the Proprietary Information
and limiting the use of the Proprietary Information to establishing,
maintaining, operating, financing or marketing the ORIONSAT system.
Neither Party shall use Proprietary Information of the other for its
own benefit or for the benefit of any third party, except as
specifically provided under the terms and conditions of the ORION 2
Contract.
(b) The foregoing shall not affect any right of ORION in respect of Data
and Documentation provided for under the ORION 2 Contract nor shall
either Party be prevented from using the general know-how and abilities
gained during the performance of the ORION 2 Contract for any purpose
whatsoever.
24.4
(a) Either Party shall be entitled to make copies of any documents
containing Proprietary Information under the terms and conditions
outlined above.
(b) ORION shall have the right at any time to remove, obliterate or ignore
any proprietary/confidential legend placed on any Data or
Documentation, or other information furnished under the ORION 2
Contract by the Contractor where the legend is not in accordance with
the ORION 2 Contract but only after notice to the Contractor and
reasonable opportunity for the Contractor to defend such legend.
24.5
Notwithstanding the foregoing, the Contractor, ORION and Subcontractors may make
(i) any filings that the Contractor, or ORION or a Subcontractor considers
advisable or necessary under applicable securities laws, including the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules applicable to the National Market System, or the securities
laws applicable to public companies in the Republic of France (the "French
Securities Laws"), (ii) such other filings as may be required to be made by any
governmental agency or any administrative or judicial body before which an
action affecting the Contractor, ORION, a
Subcontractor, any of their Affiliates, or the ORION 2 Spacecraft is pending and
(iii) such other filings as may be required by applicable law. Prior to making
any filings containing Proprietary Information of the other Party, the
disclosing Party shall provide the other Party reasonable advance notice of the
filing and cooperate with such other Party in obtaining confidential treatment
for such Proprietary Information. In addition, if ORION or the Contractor
desires for any information to be contained within such a filing to be accorded
confidential treatment and not disclosed to the public, it shall so indicate to
the other Party and such other Party shall cooperate with the disclosing Party
in obtaining confidential treatment for such information.
25. LICENSE RIGHTS
25.1
Except as set forth in Article 25.5, the Contractor grants to ORION an
irrevocable, non-exclusive license to use and have used throughout the world any
software, and any invention covered by any patent, now or hereafter owned by the
Contractor, or for which the Contractor has or may acquire the right to grant
such a license, which software and/or invention is directly incorporated in any
Deliverable Item or directly employed in the use of any Deliverable Item under
the ORION 2 Contract. Such license shall:
(a) be deemed to be fully paid-up for the purposes of the ORION 2 Contract
including use, redesign or modification of any items delivered under
the ORION 2 Contract; and
(b) be on reasonable terms and conditions for other purposes.
Such license shall be transferable to the Financing Entities and, subject to the
Contractor's approval, any other entity, such approval not to be unreasonably
withheld.
25.2
The Contractor shall, unless otherwise authorized or directed by ▇▇▇▇▇, include
in each Subcontract hereunder a license rights clause pursuant to which each
Subcontractor will grant rights to ORION to the same extent as the rights
granted by the Contractor in Article 25.1.
25.3
This Article shall not be construed as limiting any rights of ORION or
obligations of the Contractor under the ORION 2 Contract, including specifically
the right of ORION, without payment of additional compensation to the
Contractor, to use, have used, deliver, lease, sell or otherwise dispose of, any
item or any part thereof, required to be delivered under the ORION 2 Contract.
25.4
The Contractor grants to ORION a non-exclusive license to use the Contractor's
thermal propellant gauging software program (the "Software Program") on the
terms set out hereunder:
(a) such license shall be for the use of ORION and ORION's Consultants,
advisors and agents in support of ORION's internal business and for use
upon equipment notified in writing to the Contractor.
(b) ORION shall not, without the express written approval of the
Contractor, modify, enhance, copy, download or reverse engineer the
Software Program; provided, however, ORION shall be permitted to copy
the Software Program for archival or disaster recovery purposes.
(c) ORION shall not assign, transfer, sell, lease, sub-license or otherwise
deal in the Software Program; provided, however, the license shall be
transferable to the Financing Entities with the prior written consent
of the Contractor, which consent shall not be unreasonably withheld or
delayed.
26. PATENTS, TRADEMARKS AND COPYRIGHTS
26.1
The Contractor, at its own expense, shall defend ORION and its officers,
employees, agents, consultants and Subcontractors and assignees against any
claim or suit based on an allegation that the manufacture of any item in the
performance of the ORION 2 Contract, or the use, lease or sale of any item
delivered or to be delivered under the ORION 2 Contract, infringes any letters
patent, trademarks, copyrights or other proprietary rights of any third party,
and shall pay any royalties and other costs related to the settlement of such
claim or suit and the costs and damages, including attorneys' fees, incurred as
the result of any such claim or suit; provided that (i) ORION promptly notifies
the Contractor in writing within ten (10) Calendar Days of any such claim or
suit, (ii) permits the Contractor to answer the claim or suit and defend the
same, (iii) gives the Contractor authority and such assistance and information
as is available to ORION for the defense of such claim or suit, and provided
further that ORION does not by any act (including any admission or
acknowledgment or omission) prejudice such defense. Any such assistance or
information which is furnished by ▇▇▇▇▇ at the written request of the Contractor
is to be at the Contractor's expense.
26.2
If the manufacture of any item in the performance of the ORION 2 Contract or the
use, lease or sale of any item delivered or to be delivered under the ORION 2
Contract, is enjoined as a result of a suit based on a claim of infringement,
the Contractor shall resolve the matter so that the item
is no longer subject to such injunction or replace the item with a
functionally-equivalent, non-infringing item satisfactory to ORION.
26.3
▇▇▇▇▇ neither represents nor warrants that the performance of any Work or the
manufacture, use, lease or sale of any Deliverable Item will be free from third
party claims of infringement of any patents or other proprietary rights.
27. ORION 2 CONTRACT AMENDMENTS
27.1
Except as otherwise specifically provided, the ORION 2 Contract shall not be
modified except by an Amendment to the ORION 2 Contract. No purchase order,
acknowledgment, quotation or other similar document issued by either Party with
respect to the subject matter of the ORION 2 Contract shall be deemed to be a
part of the ORION 2 Contract or to modify the ORION 2 Contract in any respect
relating to the Work. No oral agreement or conversation with any officer, agent
or employee of ORION or the Contractor, either before or after execution of the
ORION 2 Contract shall affect or modify any of the terms or obligations
contained in the ORION 2 Contract.
27.2
At any time prior to completion and Delivery of all the Work under the ORION 2
Contract, ORION may, in writing, vary the Work with respect to the unlaunched
ORION 2 Spacecraft within the general scope of the ORION 2 Contract. If any such
variation causes an increase or decrease in the cost of, or in the time required
for the performance of the ORION 2 Contract, a change in the specifications of
any Deliverable Item, or a change in the Aggregate Predicted Transponder Life,
the Parties shall negotiate in good faith an equitable adjustment to the
Contract Price or any other terms affected by such variation, or to the Delivery
Dates, or the specifications, which shall be formalized in an Amendment to the
ORION 2 Contract. The Contractor shall not implement such variation, and ORION
shall not be liable for any change in Contract Price or Delivery Dates pursuant
to such variation, until and unless the Parties have entered into a written
Amendment to the ORION 2 Contract. Should ORION decide not to implement any
proposed variation of the Work it will pay the Contractor its reasonable
preparation costs in evaluating the same.
27.3
At any time prior to Delivery of all the Work under the ORION 2 Contract, the
Contractor may, in writing, request a variation of the Work within the general
scope of the ORION 2 Contract. If ▇▇▇▇▇ agrees with the request of the
Contractor for variation of the Work and such variation
causes an increase or decrease in the cost of, or in the time required for, the
performance of the ORION 2 Contract, or a change in the specifications of any
Deliverable Item, the Parties shall negotiate in good faith an equitable
adjustment to the Contract Price or any other terms affected, or Delivery Dates,
or the specifications, which shall be formalized in an Amendment to the ORION 2
Contract. The Contractor shall not implement such variation, and ORION shall not
be liable for any change in Contract Price or Delivery Dates pursuant to such
variation, until and unless the Parties have entered into an Amendment to the
ORION 2 Contract.
27.4
At any time prior to Delivery of all the Work under the ORION 2 Contract, the
Contractor may, in writing, request to rearrange the Milestone Payments
contained in Part 1(B) in order to reflect the current program status. Any such
requested change shall not become effective until and unless the Parties have
entered into an Amendment to the ORION 2 Contract which implements the requested
change.
28. GOVERNMENTAL APPROVALS
Notwithstanding any other Article in the ORION 2 Contract, the Parties
understand and agree that certain restrictions, including those placed on access
to Contractor's and Subcontractor's plants and the use, sale or other
disposition of technical data, and/or Work delivered under the ORION 2 Contract
may be imposed by any Government which has jurisdiction over the Work. The
Parties at all times, both before and after completion of the ORION 2 Contract,
agree to be and remain bound by any such Government requirements pertaining to
the technical data or Work and shall cooperate in obtaining all required
consents and approvals.
ORION shall be given an opportunity to comment on any application to the United
States Government by the Contractor prior to submission of such application. The
Contractor shall in good faith consider any comments made by ▇▇▇▇▇.
29. RESPONSIBILITY FOR THE CONTRACT
29.1
The Contractor, by having submitting a tender to perform the Work and by
executing the ORION 2 Contract, shall be deemed:
(a) to have satisfied itself as to:
(i) all the conditions and circumstances which may affect the
Contract Price, as defined in Article 5; and
(ii) the feasibility of the Work to be performed in accordance with
the terms and conditions of the ORION 2 Contract;
(b) to warrant that it has the necessary skills, facilities and capacity to
perform the Work in accordance with the terms and conditions of the
ORION 2 Contract.
29.2
The Contractor acknowledges that it has fixed the Contract Price according to
its own view and assessment of all relevant matters and no additional costs,
except as otherwise expressly provided for in the ORION 2 Contract, will be
charged over and above the Contract Price.
29.3
The Parties acknowledge that they have thoroughly examined all parts of the
ORION 2 Contract, and agree that they are complete, consistent and accurate. If
the Contractor decides, during the performance of the Work, that any portion of
the ORION 2 Contract is inaccurate or incomplete, or that there are
inconsistencies, it shall notify ORION in writing specifying full particulars
and request resolution before proceeding with the Work in question. If the
Contractor proceeds before obtaining such a resolution, it does so at its own
risk and expense, and whether or not the course it has chosen is satisfactory to
ORION, it shall be entitled to no increase in the Contract Price or any
extension of the Delivery Dates set out in Article 8. If the Contractor proceeds
with the Work before obtaining resolution of any inaccuracy, incomplete
information or inconsistency and the course of action it has pursued is not
chosen by ▇▇▇▇▇, it shall, upon request by ▇▇▇▇▇, promptly at its own expense
follow the course of action directed by ▇▇▇▇▇ and make all readjustments that
may be required.
29.4
ORION shall within twenty (20) Calendar Days after written notification by the
Contractor pursuant to Article 29.3 provide a response and resolution of the
issues raised by the Contractor.
29.5
The Contractor covenants that it will cooperate fully with, and will use
reasonable efforts to ensure the full cooperation of, all Subcontractors with
ORION in doing all things reasonably necessary to achieve the due performance of
the ORION 2 Contract.
30. DISPUTE RESOLUTION
30.1
If any dispute arises out of or in connection with this ORION 2 Contract or the
breach thereof, including but not limited to any failure to reach agreement on
price, schedule or performance, any claim for breach of contract and any
question regarding its existence, validity or termination, such dispute shall be
finally settled by arbitration in accordance with this Article 30. Prior to
commencing arbitration with respect to any dispute, either Party shall give
written notice to the other of its position and reasons therefore and may
recommend corrective action. In the event that mutual agreement cannot be
reached within ten (10) Calendar Days after receipt of such notice, or such
other period as may be specified in the ORION 2 Contract, the respective
positions of the Parties shall be forwarded to ORION's Senior Executive and the
Contractor's Senior Executive, for discussion and an attempt shall be made by
these persons to reach mutual agreement within a further ten (10) Calendar Days.
To increase the probability of an expeditious resolution of the dispute, ▇▇▇▇▇'s
Senior Executive and Contractor's Senior Executive may meet during the ten (10)
Calendar Day period and have each side present its position and reasoning
directly to them at such meeting.
30.2
If mutual agreement is not reached through the above process, either Party may
refer such dispute for final determination to an arbitration tribunal convened
in accordance with the terms of Articles 30.3 and 30.4.
30.3
The arbitration tribunal shall consist of three (3) arbitrators, one (1)
arbitrator to be appointed by ▇▇▇▇▇, one (1) arbitrator by the Contractor and
the third arbitrator to be appointed by the former two (2) arbitrators; provided
that if a Party fails to appoint an arbitrator within the time stipulated in
Article 30.8, the other Party having appointed an arbitrator, such appointee
shall be the sole arbitrator.
30.4
Except as otherwise provided herein, the arbitration shall be conducted in
accordance with and subject to the rules of the American Arbitration Association
("AAA"), including the AAA's Supplementary Procedures for International
Commercial Arbitration and shall be held in Washington, District of Columbia,
USA. The Parties may be represented by persons of their choice.
30.5
The applicable law governing this arbitration proceeding shall be exclusively
the United States Arbitration Act, 9 U.S.C., Section 1 et seq.
30.6
Except as provided in this Article 30.6 with respect to enforcement of arbitral
awards, neither Party shall be entitled to maintain any action at law or suit in
equity in respect to matters covered by this Article 30; the exclusive means of
resolving all such matters shall be the arbitration process set forth in this
Article 30. The award of the arbitral tribunal shall be final and binding on the
Parties hereto, and, upon application duly made to a court of competent
jurisdiction by a Party hereto, judgment thereon shall be entered in such court.
30.7
Pending a decision by the arbitrators as referred to in this Article, the
Contractor shall, unless directed otherwise by ▇▇▇▇▇ in writing, fulfill all of
its obligations under the ORION 2 Contract, including, if and so far as it is
reasonably practicable, the obligation to take steps necessary during the
arbitration proceedings to ensure that the Work will be Delivered within the
time stipulated or within such extended time as may be allowed under the ORION 2
Contract, provided always ORION shall continue to make payments therefore in
accordance with the ORION 2 Contract.
30.8
The following time limits shall be observed in respect to any arbitration
referred to in this Article:
(a) either Party may demand arbitration in writing after the period of
twenty (20) Calendar Days referred to in Article 30.1 has expired, or
such other time period as may be specified in the ORION 2 Contract;
(b) each Party shall appoint its arbitrator within twenty (20) Calendar
Days of receipt of the AAA acknowledgment of a demand for arbitration;
(c) the two appointed arbitrators shall appoint a third arbitrator within a
further twenty (20) Calendar Days from the time stipulated in Article
30.8(b) (unless the two arbitrators agree to an extension not to exceed
an additional twenty (20) Calendar Days); and
(d) any decision by an arbitrator(s) referred to in Article 30.2 or 30.3
shall be made within six (6) months from the date on which a Party
demands arbitration or within such extended period as the arbitrator(s)
may allow.
30.9
The fees and expenses of the arbitrator(s) and AAA administrative fees and costs
shall be borne equally by the Parties. Each Party shall bear the costs of its
own legal representation, witnesses produced by such Party, document production
and other discovery expenses.
30.10
In the case of any dispute pursuant to Article 9 hereof, the arbitration
tribunal shall award prejudgment interest on any amount which the tribunal
determines is owing from one Party to the other, such interest to be calculated
at an annual rate equal to the Prime Rate then in effect for each Calendar Day
from forty-five (45) Calendar Days following the date of loss or from the date
of the filing for arbitration, whichever is the earlier, until the date full
payment is made.
31. CONTRACT MANAGEMENT
31.1 In General
The Contractor shall conduct meetings, reviews and analyses and shall prepare
and deliver reports and documentation as provided in Part 2(A).
31.2 Approvals and Acceptances
No approval, acceptance, waivers or deviations prior to Final Acceptance by
ORION of any action or item under the ORION 2 Contract shall waive any of
ORION's contractual rights with regard to Final Acceptance of any Deliverable
Item.
31.3 ORION 2 Contract Monitoring
31.3.1
During the performance of the ORION 2 Contract, the Contractor and ORION shall
each designate a person to be its Contract Program Manager, whose duties shall
be to monitor the Work and to act as liaisons between the Parties. Such
monitoring by ▇▇▇▇▇ shall not relieve the
Contractor from performing the ORION 2 Contract in accordance with its terms and
shall not in any way detract from the Contractor's position as an independent
contractor.
31.3.2
Any Consultant who performs services on behalf of ▇▇▇▇▇ shall have access to the
Work and data and may witness tests in the same manner as ▇▇▇▇▇, as provided in
Article 7. ▇▇▇▇▇'s Consultants shall execute non-disclosure agreements with the
Parties and, as necessary, with Subcontractors.
31.3.3
▇▇▇▇▇'s Consultants shall have no authority to change any part of the ORION 2
Contract, or to direct the Contractor or to bind ORION. Any changes to the ORION
2 Contract shall be made only in accordance with Article 27, but ▇▇▇▇▇'s
Consultants may participate in discussions regarding such changes. Any action
taken by the Contractor prior to the resolution of any such question shall be at
the Contractor's own risk and expense.
32. SECURITY INTEREST AND FINANCIAL INFORMATION
The Contractor agrees to cooperate with ▇▇▇▇▇ and endeavor in good faith to
provide security interests in the Work after ORION exercises the Option and
periodic financial reports concerning the Contractor's financial status, if such
are required by any Financing Entity, and to negotiate in good faith the terms
upon which such security interests are to be provided and the content/frequency
of such financial reports.
33. ASSIGNMENT
33.1
The Contractor shall not, without the prior written approval of ORION and except
on such terms and conditions as are determined in writing by ORION, assign,
mortgage, charge or encumber the ORION 2 Contract or any part thereof, any of
its rights, duties, or obligations thereunder, the Work or any monies payable or
to become payable under the ORION 2 Contract, to any person, except to a parent
or a wholly-owned direct or indirect subsidiary company of the Contractor, or
for the purpose of corporate merger, recapitalization or reconstruction.
33.2
The Parties recognize that this ORION 2 Contract may be financed through
external sources. The Contractor agrees to work cooperatively to negotiate and
execute such documents as may be reasonably required to implement such financing
(other than any document requiring the subordination or delay of any payments
required to be paid hereunder) and agrees ORION shall
have the right to assign its rights, duties or obligations under the ORION 2
Contract to ORION Network Systems, Inc., any ORION subsidiary, and to any
Financing Entity, subject to prior notice to the Contractor.
33.3
Provided that the Contractor's rights under the ORION 2 Contract, including the
ability to perform the Work, in the Contractor's reasonable judgment, are not
and would not be adversely affected, the Contractor shall not withhold its
approval to any assignment, mortgage, charge or encumbrance of any of the
rights, duties or obligations of ORION under the ORION 2 Contract.
33.4
Assignment of this ORION 2 Contract shall not relieve the assigning Party of any
of its obligations nor confer upon the assigning Party any rights except as
provided in the ORION 2 Contract.
34. NOTICES AND DOCUMENTATION
34.1
Any notice or other communication required or permitted pursuant to the ORION 2
Contract including invoices shall be sufficiently given if given in writing,
delivered personally or by pre-paid registered air mail, or by telex, or by
facsimile to the following address:
In the case of ORION:
ORION SATELLITE CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
For the attention of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President,
Engineering and Satellite Operations, for technical, management and commercial
matters and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President of Corporate and Legal Affairs for
contract matters
or such other persons at such address as ORION may from time
to time direct in writing for specific purposes.
with a copy to:
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20037
United States of America
For the attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for notices relating to
matters under Articles 6, 9, 15 and 21.
In the case of Contractor:
MATRA MARCONI SPACE UK LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇ Road
Stevenage, Hertfordshire SG1 2AS
England
For the attention of Mr. ▇ ▇▇▇▇▇, ORION Project Manager for technical
or management matters
For the attention of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Commercial Manager
34.2
A notice given either by certified mail, or by confirmed facsimile or telex
followed the same day by the original document via certified mail, shall be
deemed to be a notice in writing for the purpose of the ORION 2 Contract and
shall be deemed to have been given upon receipt by the sender of the answer-back
code of the recipient at the conclusion of the telex or by the actual receipt of
the letter or of the facsimile confirmed by its answer-back code, provided
transmission
is completed during normal business hours on a Business Day in the place of the
addressee and if it is not so completed then upon the commencement of normal
business hours on the next Business Day in the place of the addressee after
transmission is completed.
34.3
The Contractor agrees that any communication or notice required or permitted to
be given by ▇▇▇▇▇ to the Contractor which is given by the Program Manager or
Contracts Manager or has, prior to the execution of the ORION 2 Contract been so
given, shall be deemed to have been given by ▇▇▇▇▇.
34.4
Without affecting the provisions of Article 34.2, the Parties agree that all
correspondence on contract matters shall, if sent by confirmed facsimile or
telex, be followed, as soon as reasonably practicable after the sending of such
correspondence, by the original document via first-class mail.
35. SEVERABILITY AND WAIVER
35.1
In the event any one or more of the provisions of the ORION 2 Contract shall,
for any reason, be held to be invalid or unenforceable, the remaining provisions
of the ORION 2 Contract shall be unimpaired, and the invalid or unenforceable
provision shall be replaced by a mutually acceptable enforceable provision which
comes closest to the intention of the Parties underlying the invalid or
unenforceable provision.
35.2
A waiver of any breach of a provision hereof shall not be binding upon either
Party unless the waiver is in writing and such waiver shall not affect the
rights of the Party not in breach with respect to any other or future breach.
36. COMPLIANCE WITH THE LAW, PERMITS AND LICENSES
36.1
The Contractor shall, at its own expense, comply with the requirements of any
laws of any place in which any part of the Work is to be done and with the
lawful requirements of public, municipal and other authorities in any way
affecting or applicable to any Work.
36.2
The Contractor shall at its own expense obtain any permits, licenses, approvals
or certificates, including any required for import or export, necessary for the
performance of the Work under the ORION 2 Contract. The Contractor shall, at its
own expense, perform the Work in accordance with the conditions of any
applicable permits or licenses, approvals or certificates. ▇▇▇▇▇ agrees to use
its best efforts in assisting the Contractor to obtain any of the documents
referred to above which are issued by a United States authority.
36.3
ORION shall not be responsible in any way for the consequences, direct or
indirect, of any violation by the Contractor or its Subcontractors, or their
officers, employees, agents or servants of any law of a country in which the
Work is performed, or of any country whatsoever.
37. APPLICABLE LAW; SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR ACCEPTANCE OF SERVICE; INTERPRETATION AND
LANGUAGE
37.1
Except as provided in Article 30.5 hereof, the ORION 2 Contract shall be
governed by and interpreted in accordance with the laws of the State of
Maryland, United States of America, without regard to the conflict of laws
provisions thereof.
37.2
The Contractor appoints ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, attention ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
of America as its agent for acceptance of service of process in the United
States. Contractor shall notify ORION promptly in writing of the appointment by
Contractor of a new agent or of a change in the agent's address.
37.3
In the ORION 2 Contract unless the context otherwise requires:
i) words of any gender include any other gender;
ii) the singular includes the plural and vice versa;
iii) "person" includes a reference to a partnership, firm, or any other body
of persons, company or organization whether incorporated or
unincorporated.
37.4
Any heading to this ORION 2 Contract shall not be used in the construction or
interpretation of the ORION 2 Contract.
37.5
All communications between the Parties to the ORION 2 Contract shall be in the
English language.
37.6
Any reference to liquidation damages means agreed liquidated or ascertained
damages and not a penalty.
38. SURVIVAL
Any provision of the ORION 2 Contract which can be reasonably construed to
survive the expiration or termination of the ORION 2 Contract for any reason,
including but not limited to the indemnification and confidentiality obligations
set forth herein, shall survive such expiration or termination of the ORION 2
Contract.
39. KEY PERSONNEL
39.1
The Contractor will assign properly qualified and experienced personnel to the
program contemplated under the ORION 2 Contract. Personnel assigned to the
following positions shall be considered "Key Personnel":
a) The Contractor's Project Manager
b) The Contractor's Contracts Manager
c) The Contractor's PA Manager
d) The Contractor's Resident Manager at NEC
e) The Contractor's Engineering Manager
f) The NEC Project Manager
g) The Contractor's AIT Manager
▇▇▇▇▇ shall have the right to approve the Contractor's Project Manager and NEC's
Project Manager which approval shall not be unreasonably withheld or delayed.
Other Key Personnel shall not be assigned to other duties without the Contractor
giving prior written notice to and consulting with ▇▇▇▇▇.
The Contractor shall provide a chart to ORION of the Program Key Personnel and
shall keep such chart current.
39.2
Subject to ▇▇▇▇▇'s right to approve the selection of the Contractor's Project
Manager pursuant to Article 39.1, in the event that an employee included in the
list of Key Personnel becomes unavailable for work under the ORION 2 Contract,
the Contractor shall replace him by a person of substantially equivalent
qualifications and abilities.
40. PROGRESS REPORTS
40.1
The Contractor shall render such reports as to the progress of the Work and
attend such meetings with ORION as specified in Part 2(A) (Statement of Work)
and Part 2(B) (Contract Documentation Requirements List).
41. LAUNCH VEHICLE AGENCY
41.1
41.1.1 The Contractor hereby agrees that ORION shall have the right to direct
the Contractor to terminate the Launch Agreement at any time, in which case
ORION shall be liable for the termination charges specified in the termination
liability schedule set forth in Table 21.6 of the Launch Agreement and attached
hereto as Annex C.
41.1.2. The Contractor hereby agrees that ORION shall have the right to direct
the Contractor to terminate the Launch Agreement, in whole or, where severable,
in part and for ORION to receive directly from the Launch Vehicle Agency a full
refund of all amounts previously paid by ORION (excluding postponement fees and
retanking charges) (or where the Launch Vehicle Agency provides such amounts to
the Contractor, the Contractor shall pay over such amounts to ORION with no
right of offset) where there has been more than three hundred sixty-five (365)
cumulative Calendar Days of Launch postponement by the Launch Vehicle Agency. In
the event that, as a result of ORION exercising such right, there is any delay
in the performance of the Work, such delay shall constitute an Excusable Delay
and the provisions of Article 12 hereof shall be applicable. ▇▇▇▇▇'s right to
direct the Contractor to terminate the Launch Agreement is conditional upon
receipt of the Contractor's written notification of a Launch postponement or
upon the occurrence of a single or cumulative delays by the Launch Vehicle
Agency which exceed three hundred sixty-five (365) Calendar Days. ▇▇▇▇▇ must
direct the Contractor to terminate within sixty (60) Calendar Days of the first
of the two events above or must waive its right to direct the termination of
that Launch under this Article unless further delayed by the Launch Vehicle
Agency.
41.2
The Launch Vehicle Agency shall provide such insurance as required by the United
States Department of Transportation for loss or damage to United States
Government property resulting from activities to be carried out in connection
with Launches to be provided under the ORION 2 Contract. In consideration of and
conditioned upon a reciprocal waiver by the United States Government, both ORION
and the Contractor agree to waive any claim against the United States Government
or its agencies for any property damage or loss they sustain or for any personal
injury to, death of, or any property damage or loss sustained by their own
employees.
41.3
The Launch Vehicle Agency has executed agreements with various United States
Government agencies for use of Government-owned property and facilities relating
to the production of launch vehicles and launch operations at Cape Canaveral Air
Station (CCAS) in Florida. ▇▇▇▇▇ agrees that it will comply with the United
States Government's laws and regulations as they relate to ORION-furnished
property and personnel, and those agreements relating directly to the United
States expendable launch vehicle program. The Contractor will request the Launch
Vehicle Agency to furnish copies of such agreements to ORION upon ▇▇▇▇▇'s
request. ▇▇▇▇▇ will indemnify the Contractor for any ORION violation of the
laws, regulations or agreements as specified herein. In furtherance of the
foregoing, the Parties shall, before Launch, execute and deliver the Agreement
for Waiver of Claims and Assumption of Responsibility, the execution of which is
required by the United States Department of Transportation as a condition of
granting the Contractor's license to conduct launch activities and launch the
ORION 2 Spacecraft.
41.4
On or before the last day of the twenty-second (22nd) month after NPD,
Contractor, acting upon the advice and with the consent of ORION, shall
cooperate in good faith with the Launch Vehicle Agency to finalize the selection
of a Launch Date within the Launch Slot. The Parties recognize that, if the
Contractor and the Launch Vehicle Agency cannot mutually agree upon a Launch
Date, the Launch Vehicle Agency may select the Launch Date, taking into account
all available launch opportunities and the Contractor's requirements and
interests.
42. GUARANTEE OF CONTRACTOR OBLIGATIONS
The Contractor shall provide an unconditional corporate guarantee by Matra
Marconi Space NV and, if required, other entities acceptable to any Financing
Entity, in respect of its obligations under the ORION 2 Contract.
43. INTEREST
Any interest due under the ORION 2 Contract shall be calculated in accordance
with LIBOR plus three percent (3%).
44. COUNTERPARTS
This Agreement may be executed in a number of counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the President of ORION SATELLITE CORPORATION, the General
Partner of International Private Satellite Partners, L.P., has hereto set his
hand for and on behalf of International Private Satellite Partners, L.P., on the
29th day of January 1997,
and a Director of MATRA MARCONI SPACE UK LIMITED has hereto set his hand for and
on behalf of MATRA MARCONI SPACE UK LIMITED on the 28th day of January 1997.
INTERNATIONAL PRIVATE SATELLITE MATRA MARCONI SPACE UK LIMITED
PARTNERS, L.P.
By: Orion Satellite Corporation, its General Partner
By By
--------------------------------- ---------------------------------
▇. ▇▇▇▇ ▇▇▇▇▇, President and CEO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
Annex A
FORM OF REQUEST FOR PAYMENT
(Terms of this Form will be revised to conform
to the requirements of the ORION 2 Credit Agreement)
[Date]
ORION SATELLITE CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Attention: [ ]
RE: Part 1(A) ORION 2 Spacecraft Purchase Contract, dated as of
[...] (as amended, supplemented or modified from time to time,
the "ORION 2 Contract"), between INTERNATIONAL PRIVATE
SATELLITE PARTNERS, L.P., d/b/a ORION ATLANTIC, L.P. ("ORION")
and MATRA MARCONI SPACE UK LIMITED (the "Contractor")
Ladies and Gentlemen:
This Request for Payment is delivered to ORION pursuant to Article 6 of the
ORION 2 Contract and constitutes the Contractor's request for payment in the
amount of $ [...] for Milestone Payment No. ________, and Progress Payment No.
__________.
Very truly yours,
MATRA MARCONI SPACE UK LIMITED
By:
Title:
Appendix I to Annex A
Form of Contractor Certificate
(Terms of this Form will be revised to conform
to the requirements of the ORION 2 Credit Agreement)
Reference: Milestones Payment No. _____
Progress Payment No. _____
________________ ____, 19___
RE: ORION 2 Spacecraft Purchase Contract, with International
Private Satellite Partners, L.P. d/b/a Orion Atlantic, L.P.
(as amended, supplemented or modified and in effect from time
to time the "ORION 2 Contract")
ORION SATELLITE CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Attention: [ ]
Ladies and Gentlemen:
This Certificate is delivered to you in connection with the ORION 2 Contract.
Each capitalized term used herein and not otherwise defined shall have the
meaning assigned thereto in the ORION 2 Contract.
We hereby certify, after due inquiry, that, as of the date hereof:
1. The ORION 2 Contract is in full force and effect and except as set
forth in Schedule I hereto, has not been amended, supplemented or
otherwise modified, and attached hereto are true, correct and complete
copies of all Amendments to the ORION 2 Contract or any other
modification or amendment to the ORION 2 Contract not heretofore
delivered to the Financing Entity.
2. Except as set forth in Schedule I hereto, we are not aware of any event
that has occurred or failed to occur which occurrence or
non-occurrence, as the case may be, could
reasonably be expected to cause the date of Final Acceptance of the
ORION 2 Spacecraft to occur later than the Delivery Date therefor.
3. Except as set forth in Schedule I hereto, no event or condition exists
that permits or requires us to cancel, suspend or terminate our
performance under the ORION 2 Contract or that could excuse us from
liability for non-performance thereunder.
4. Except with respect to amounts that are the subject of a dispute (such
amounts and such disputes being described in reasonable detail in
Schedule II hereto), all amounts due and owing to us have been paid in
full through the date of the immediately preceding Construction
Certificate and are not overdue. To the extent payment to us has been
or will be made as specified in this and the immediately preceding
Contractor Certificates, there are and will be no mechanics' or
materialsmen's liens except Permitted Liens (as defined in the
Financing Agreements) on the Project (as defined in the Financing
Agreements), the Collateral (as defined in the Financing Agreements) or
on any other property in respect of the work which has or will be
performed under the ORION 2 Contract.
5. a. The amount contained in the Request for Payment delivered to
you concurrently herewith in accordance with the terms of
Article 6.1.1(b) of the ORION 2 Contract represents monies
owed to us in respect of Milestone Payment No. _____.
b. The amount referred to in paragraph (a) above was computed in
accordance with the terms of the ORION 2 Contract.
c. The Milestone to which Milestone Payment No. ____ relates has
been completed in accordance with the ORION 2 Contract.*
6. a. The amount of the Request for Payment delivered to you
concurrently herewith in accordance with the provisions of
Article 6.1.1(a) of the ORION 2 Contract represents monies
owed to us in respect of Progress Payment No. ____.
b. The amount referred to in paragraph (a) above was computed in
accordance with the ORION 2 Contract.*
7. An amount of $_________ is due to us and represents monies owed to us
in respect of the principal amounts due and payable on the outstanding
Note.*
Very truly yours,
MATRA MARCONI SPACE UK LIMITED
By:
Title:
* Include when relevant
SCHEDULE I to
Appendix I to Annex A
List of Exceptions:
Amendments to ORION 2 Spacecraft Purchase Contract:
Exceptions Affecting Final Acceptance Date:
Exceptions Affecting Contractor's Performance:
SCHEDULE II to
Appendix I to Annex A
List of Disputes:
ANNEX B
INTER-PARTY WAIVER OF LIABILITY PROVISIONS IN LAUNCH AGREEMENT
LAUNCH AGREEMENT TERMINATION CHARGES
COMMERCIAL-IN-CONFIDENCE
---------------------------------------------------------------------
ORION 2 SPACECRAFT PURCHASE CONTRACT
PART 1(B)
ORION 2 PAYMENT PLANS AND
TERMINATION LIABILITY AMOUNTS
---------------------------------------------------------------------
15 January 1997 CONFIDENTIAL Issue 4
CONTENTS
--------
Section Description Page No.
------- ----------- --------
1. Progress Payment Plan 2
2. Milestone Payment Plans 4
3. Termination Liability Amounts 7
15 January 1997 CONFIDENTIAL Issue 4
ORION SATELLITE
CORPORATION
PART 2(A)
ORION 2 STATEMENT OF WORK
Issue: 3
Dated: 28 June 1996
Signed: Date:
On behalf of ORION Satellite Corporation
Signed: Date:
On behalf of Matra Marconi Space UK Limited
15 January 1997 CONFIDENTIAL Issue 4
TABLE OF CONTENTS
1. INTRODUCTION..............................................................1
1.1 Scope...............................................................1
1.2 Responsibilities....................................................1
2. EQUIPMENT, DOCUMENTATION, AND SERVICES......................................2
2.1 Introduction........................................................2
2.2 Deliverable Equipment...............................................3
2.2.1 Flight Spacecraft............................................3
2.2.2 Mission Specific Hardware and Software.......................3
2.2.3 Optional Networking Transponders.............................3
2.2.4 Optional Spacecraft Dynamic Simulator........................3
2.3 Deliverable Documentation...........................................4
2.4 Services............................................................4
2.4.1 Launch Support Services......................................4
2.4.2 Launch Services..............................................5
2.4.3 Reserved.....................................................5
2.4.4 Mission Support Services.....................................5
2.4.5 Operations Training..........................................5
3. PROGRAM MANAGEMENT........................................................6
3.1 Introduction........................................................6
3.1.1 Scope........................................................6
3.1.2 Responsibilities.............................................6
3.1.3 Program Management Plan......................................7
3.2 Program Management Interface........................................8
3.3 Documentation and Data Management...................................8
3.3.1 General......................................................8
3.3.2 Documentation Center.........................................9
3.3.3 Data Management Plan.........................................9
3.3.4 Documentation Submission Criteria............................9
3.3.5 Revision and Maintenance of Documentation....................9
3.3.6 Monthly Documentation Status Report..........................9
3.4 Meetings............................................................9
3.4.1
Inaugural Meeting.........................................................9
3.4.2 Progress Meetings...........................................10
3.4.3 Senior Management Meetings..................................10
3.4.4 Quarterly Progress Meetings.................................10
15 January 1997 CONFIDENTIAL Issue 4
3.4.5 Subcontractor Progress Meetings and Other Meetings..........10
3.4.6 Agenda Co-ordination Procedure..............................11
3.4.7 Minutes.....................................................11
3.5 Reviews............................................................11
3.6 Action Item Control................................................12
3.7 Management of Contract Changes.....................................12
3.8 Program Planning and Status Information............................12
3.8.1 Hardware Matrix ............................................12
3.8.2 Qualification Status List...................................13
3.8.3 Critical Items List.........................................13
3.8.4 Program Schedules ..........................................13
3.8.5 Program Progress Report.....................................14
3.8.6 Executive Summary...........................................15
3.9 Program Monitoring and Notification Requirements...................15
3.9.1 ORION Representatives.......................................15
3.9.2 Office Accommodation and Facilities.........................16
3.9.3 Attendance at Meetings......................................16
3.9.4 Access to Documentation.....................................16
3.9.5 ORION Presence During Development, Qualification, and
Acceptance Tests............................................16
3.9.6 Notification Requirements...................................17
3.9.7 Material Review Board (MRB) and Failure Review
Board (FRB).................................................17
4. DESIGN ACTIVITIES18
4.1 General............................................................18
4.2 Design Reviews.....................................................18
4.3 Design Analyses and Study Reports..................................18
4.3.1 Analyses at Spacecraft System Level.........................19
4.3.1.1 Spacecraft Failure Analysis.............................19
4.3.1.2 Dynamic Analysis........................................19
4.3.1.3 Antenna Pointing Error Analysis.........................20
4.3.1.4 Propellant Budget Analysis..............................21
4.3.1.5 Mass Properties Analysis................................21
4.3.1.6 Power Budget Analysis...................................21
4.3.1.7 Mission Analysis........................................22
4.3.1.8 Electromagnetic Compatibility (EMC) Analysis............22
4.3.1.9 Environmental Effects Analysis..........................23
4.3.1.10 Worst Case Performance Analysis.........................24
4.3.1.11 Autonomous Commands Analysis............................24
4.3.2 Subsystem Level Analyses................................24
4.3.2.1 Communications Subsystem Analysis.......................25
4.3.2.2 Telemetry, Tracking, and Command (TT&C) Subsystem
Analysis................................................28
15 January 1997 CONFIDENTIAL Issue 4
4.3.2.3 Attitude and Orbit Control Subsystem (AOCS) Analysis....29
4.3.2.4 Propulsion Subsystem Analysis...........................30
4.3.2.5 Power Subsystem Analysis................................30
4.3.2.6 Thermal Subsystem Analysis..............................31
4.3.2.7 Structure Analysis......................................32
5. PRODUCT ASSURANCE.........................................................33
5.1 Product Assurance Requirements.....................................33
5.2 Quality Assurance Tasks............................................33
6. MANUFACTURING, ASSEMBLY, INTEGRATION AND TEST............................35
6.1 General............................................................35
6.2 Test Plan..........................................................35
6.3 Test Procedures, Data, and Reports.................................36
6.3.1 Unit and Subsystem Test Procedures and Reports..............36
6.3.2 Spacecraft Test Procedures and Reports......................37
6.3.3 Test Data...................................................37
6.3.4 Spacecraft Log Book.........................................38
6.4 Test Reviews.......................................................38
6.5 Preshipment Review.................................................39
6.6 System and Major Subsystems Integration and Test Notification......39
6.7 Failure Notification..............................................39
6.8 Electrical and Mechanical Ground Support Equipment (EGSE/MGSE).....40
6.9 Test Equipment Requirements........................................40
6.10 Software Requirements..............................................40
6.11 Delivery of Drawings and Engineering Control Documents
for Spacecraft Operation and In-Orbit Control......................40
6.12 Secure Command System and Certification............................41
7. LAUNCH AND MISSION SUPPORT SERVICES......................................42
7.1 Scope..............................................................42
7.2 Launch Vehicle Compatibility.......................................42
7.3 Launch Support Services............................................42
7.3.1 Spacecraft Preparation at the Launch Sites..................43
7.3.2 Spacecraft Propellant and Pressurant........................43
7.3.3 Support of Meetings and Reviews.............................43
7.4 Safety.............................................................43
7.5 Launch Services....................................................44
15 January 1997 CONFIDENTIAL Issue 4
7.6 Mission Support....................................................44
7.6.1 Scope ......................................................44
7.6.2 Mission Support Activities..................................45
7.6.2.1 Preparation and Definition of Mission Support Documents.45
7.6.2.2 World-Wide Ground Segment...............................48
7.6.2.3 Mission Support Procedures and Sequence of Events.......49
7.6.2.4 Spacecraft/ORION SCS Compatibility......................49
7.6.2.5 In-Orbit Test Plan and Procedure........................50
7.6.2.6 Mission Reviews.........................................50
7.6.2.7 Training ...............................................51
7.6.2.7.1 Classroom Training......................................51
7.6.2.7.2 On the Job Training.....................................52
7.6.2.7.3 Course Materials........................................53
7.6.2.8 Real-Time Mission Operations............................53
7.6.2.9 Post-Mission Review.....................................53
7.6.2.10 In-Orbit Testing and Test Report........................54
7.6.2.11 Spacecraft Acceptance Review............................54
7.6.2.12 Spacecraft Operational Support..........................54
8. SHIPPING AND TRANSPORTATION.............................................55
8.1 Shipping and Transportation Plan.................................55
8.2 Spacecraft Shipment ...............................................55
9. OPTIONS
9.1 Networking Transponders............................................56
9.2 Spacecraft Dynamic Simulator Software..............................56
10. MISSION SPECIFIC HARDWARE AND SOFTWARE ..................................57
10.1 Command Generators.................................................57
10.2 Propulsion Model...................................................57
10.3 Propellant Gauging.................................................57
10.4 Sensor Blinding Prediction Model...................................57
15 January 1997 CONFIDENTIAL Issue 4
ORION SATELLITE
CORPORATION
PART 2(B)
ORION 2 CONTRACT
DOCUMENTATION REQUIREMENTS
LIST (CDRL)
Issue: 2
Dated: 28 June 1996
Signed: Date:
On behalf of ORION Satellite Corporation
Signed: Date:
On behalf of Matra Marconi Space UK Limited
15 January 1997 CONFIDENTIAL Issue 4
ORION SATELLITE CORPORATION
PART 3(A)
ORION 2 SPACECRAFT SPECIFICATIONS
Issue:3
Dated: 28 June 1996
Signed: Date:
On Behalf of ORION Satellite Corporation
Signed: Date:
On Behalf of Matra Marconi Space UK Limited
15 January 1997 CONFIDENTIAL Issue 4
TABLE OF CONTENTS
1. INTRODUCTION................................................................
1.1 ▇▇▇▇▇ and Purpose....................................................
1.2 Description of the ORION 2 Spacecraft................................
1.3 General Requirements.................................................1
2. SPACECRAFT SYSTEM CHARACTERISTICS...........................................3
2.1 Life.................................................................3
2.1.1 Manoeuver Life............................................3
2.1.2 Orbital Life..............................................3
2.2 Launch Configuration.................................................3
2.3 Spacecraft Reliability and Quality Assurance
Requirements....................................................3
2.5 General Spacecraft Design Considerations.............................6
2.5.1 Configuration.............................................6
2.5.2 Maintainability, Interchangeability, and
Accessibility...........................................6
2.5.3 Mechanical Design Criteria for Units and Assemblies.......7
2.5.4 Thermal Design Criteria for Units and
Assemblies..............................................7
2.5.5 Design Criteria for Electronic Units and Onboard
Software................................................7
2.5.6 Use of Connectors.........................................8
2.5.7 Spacecraft Testing Via the Telemetry System...............8
2.5.8 Hard-line Connections for Communications and
TT&C Subsystem Testing...................................8
2.5.9 Insulation of Conductors..................................8
2.5.10 Radiation Environment....................................9
2.5.11 Design Considerations Associated with Charging
Phenomena...............................................9
2.5.12 Zero-g Testing..........................................11
2.5.13 Operation Following Storage.............................11
2.5.14 Launch Windows and Mission Profile Constraints..........11
2.5.15 Telemetry Transmitters Status During Launch.............12
2.5.16 Helium Pressurant Venting (if applicable)...............12
2.5.17 Orbit Control Maneuvers.................................12
2.5.18 Operation in Inclined Orbit.............................12
2.5.19 Attitude Control Failure Mode Recovery and Continued
Operation..............................................12
2.6 Definition of Coordinate Axes and Attitude Angles...................13
2.7 Antenna Beam Pointing Accuracy......................................13
2.8 Minimum Performance and Defect Criteria.............................15
3.0 COMMUNICATIONS SUBSYSTEM..................................................16
15 January 1997 CONFIDENTIAL Issue 4
3.1 General.............................................................16
3.1.1 Definitions..............................................16
3.1.2 Conditions for Specification.............................19
3.1.3 Primary Transmission Modes...............................20
3.2 Coverage............................................................20
3.2.1 Coverage Regions.........................................20
3.2.2 Beams....................................................22
3.3 Polarization........................................................27
3.3.1 Orthogonality............................................27
3.3.2 Receive Beam Isolation...................................28
3.3.3 Transmit Beam Isolation..................................28
3.4 Capacity............................................................30
3.5 Frequency Plan......................................................31
3.6 Communications Subsystem and Antenna Beam Interconnectivity.........33
3.6.1 Communications Subsystem Configuration...................33
3.6.2 Antenna Beam Interconnectivity...........................33
3.7 Input Characteristics...............................................34
3.7.1 Receive Sensitivity (G/T)................................34
3.7.2 Gain and Level Control...................................37
3.7.2.1 Fixed Gain Mode.......................................37
3.7.2.2 Automatic Level Control Mode..........................37
3.7.3 Transponder Gain........................................38
3.7.3.1 FG Mode...............................................38
3.7.3.2 ALC Mode..............................................38
3.7.4 Drive Conditions.........................................38
3.7.4.1 Overdrive Capability...................................38
3.7.4.2 Overdrive Damage Limit.................................39
3.7.4.3 Pulsed Transient Response..............................39
3.7.5 Receive Rejection........................................39
3.7.6 Linearity of the Common Receive Section..................40
3.7.7 Interference from Command Carrier........................40
3.8 Output Characteristics..............................................41
3.8.1 Effective Isotropic Radiated Power (EIRP)................41
3.8.2 Spurious Outputs.........................................45
3.8.3 Spurious Modulation......................................46
3.8.4 AM/AM Transfer...........................................46
3.8.5 AM/FM Transfer...........................................48
3.8.5.1 Continuous Mode........................................48
3.8.5.2 Pulsed Level...........................................48
3.8.6 Passive Intermodulation..................................48
3.8.7 Multipaction Requirements................................48
3.9 Transfer Characteristics............................................48
3.9.1 Gain Versus Frequency....................................49
3.9.2 Gain Slope...............................................51
15 January 1997 CONFIDENTIAL Issue 4
3.9.3 Group Delay Versus Frequency.............................51
3.9.4 Group Delay Slope........................................53
3.9.5 Group Delay Stability....................................53
3.9.6 Group Delay Ripple.......................................53
3.9.7 Phase Linearity and AM/PM Conversion Coefficient.........53
3.9.8 AM/PM Transfer Coefficient...............................54
3.9.9 Amplitude Linearity......................................54
3.9.10 Frequency Stability.....................................55
3.9.11 Out-Of-Band Response....................................55
3.10 Cessation of Emissions.............................................56
3.11 Traffic Routing....................................................56
3.12 Redundancy.........................................................57
3.13 Power Amplifiers...................................................57
3.13.1 Linearized TWTAs.................................................57
3.13.2 TWTA Auto-Restart Capability............................57
3.14 TT&C Interface.....................................................58
3.14.1 Command Requirements....................................58
3.14.2 Telemetry Requirements..................................58
4.0 TELEMETRY, TRACKING, AND COMMAND (TT&C)...................................64
4.1 Telemetry...........................................................64
4.1.1 Functional Requirements..................................64
4.1.1.1 Purpose................................................64
4.1.1.2 Function...............................................65
4.1.1.3 Operation..............................................65
4.1.1.4 Interaction with the Communications Subsystem..........65
4.1.1.5 Redundancy.............................................65
4.1.1.6 Interfaces.............................................66
4.1.1.6.1 All Subsystems.......................................66
4.1.1.6.2 Communications Subsystem.............................67
4.1.1.6.3 Telemetry, Tracking and Command Subsystem............67
4.1.1.6.4 Attitude and Orbit Control Subsystem.................68
4.1.1.6.5 Propulsion Subsystem.................................69
4.1.1.6.6 Power Subsystem......................................69
4.1.1.6.7 Thermal Subsystem....................................70
4.1.1.6.8 Deployment and Pointing Mechanisms...................70
4.1.1.7 Accuracy...............................................71
4.1.1.8 Data Channel Dynamic Range.............................71
4.1.1.9 Spare Capacity.........................................72
4.1.2 RF Parameters............................................72
4.2 Command.............................................................73
4.2.1 Functional Requirements.................................73
15 January 1997 CONFIDENTIAL Issue 4
4.2.1.1 Purpose................................................73
4.2.1.2 Function...............................................73
4.2.1.3 Operation..............................................73
4.2.1.4 Isolation..............................................73
4.2.1.5 Redundancy.............................................74
4.2.1.6 Interfaces.............................................74
4.2.1.7 System Test Considerations.............................74
4.2.1.8 Spare Capacity.........................................75
4.2.2 RF Parameters............................................75
4.2.3 Baseband Characteristics.................................75
4.2.3.1 Error Prevention and Detection.........................76
4.2.3.2 Command Security.......................................76
4.2.3.3 Command Acceptance Probability.........................77
4.3 Ranging.............................................................77
4.3.1 Functional Requirement...................................77
4.3.1.1 Purpose................................................77
4.3.1.2 Function...............................................77
4.3.1.3 Operation..............................................78
4.3.1.4 Isolation..............................................78
4.3.2 Performance Requirements.................................78
5. ATTITUDE AND ORBIT CONTROL SUBSYSTEM (AOCS)................................79
5.1 Functional Description..............................................79
5.2 Subsystem Performance and Design Requirements.......................79
5.2.1 Attitude Determination...................................79
5.2.1.1 Transfer Orbit.........................................79
5.2.1.2 Synchronous Orbit......................................80
5.2.2 Attitude Control.........................................80
5.2.2.1 Parking Orbit (If Applicable)..........................80
5.2.2.2 Transfer Orbit.........................................80
5.2.2.3 Transfer to Geosynchronous Orbit and Initial
Acquisition............................................80
5.2.2.4 On Orbit Control and Antenna Pointing Mode.............80
5.2.3 Reacquisition............................................81
5.2.4 Ground Control...........................................81
5.2.4.1 Ground Control Command Capability......................81
5.2.5 Safe Modes...............................................81
5.2.6 Special Features.........................................82
5.2.6.1 Antenna Pattern Measurement Capability.................82
5.2.6.2 Control Bias Capability................................82
5.2.6.3 AOCS Switching.........................................82
5.2.6.4 Control Electronics Fault Protection...................82
5.2.6.5 Dynamic Stability......................................83
5.2.7 Subsystem Configuration and Interfaces...................83
5.2.7.1 Redundancy.............................................83
5.2.7.2 TT&C Interfaces........................................83
15 January 1997 CONFIDENTIAL Issue 4
5.2.7.3 Propulsion Interfaces..................................83
6. PROPULSION SUBSYSTEM.......................................................84
6.1 Functional Description..............................................84
6.2 Design Requirements.................................................84
6.3 Redundancy..........................................................86
6.4 Maneuver Life and Propellant Loading................................87
6.4.1 General Requirements.....................................87
6.4.2 Propellant Budgeting Methodology.........................87
6.4.2.1 Actual Hardware Performance Test Data..................87
6.4.2.2 Inefficiencies of Operation............................88
6.4.2.3 Inflight Performance...................................88
6.4.2.4 Specific Maneuver Requirements.........................88
6.5 TT&C Interfaces.....................................................89
7. POWER SUBSYSTEM............................................................90
7.1 Functional Description..............................................90
7.2 General Requirements................................................90
7.3 Energy Generation...................................................91
7.3.1 Solar Cells..............................................91
7.3.2 Power Output.............................................91
7.3.3 Power Transfer Assembly..................................91
7.4 Energy Storage......................................................92
7.4.1 Batteries................................................92
7.4.2 Battery Charge Management................................92
7.4.3 Cell Failure.............................................93
7.4.4 Battery Removal and Storage..............................93
7.5 Power Conditioning and Control......................................93
7.5.1 Bus Configuration........................................93
7.5.2 Failure Modes and Shutdown Sequence......................94
7.5.3 Bus Undervoltage and Overvoltage.........................95
7.5.4 Interaction Between the Communications and Power
Subsystems...............................................95
7.6 TT&C Interfaces.....................................................95
8. THERMAL CONTROL SUBSYSTEM..................................................96
8.1 Functional Description..............................................96
8.2 Performance Requirements............................................96
8.3 Subsystem Design Requirements.......................................97
8.3.1 Instrumentation.......................................98
8.3.2 Materials.............................................98
8.3.3 Venting...............................................98
8.3.4 Grounding.............................................99
15 January 1997 CONFIDENTIAL Issue 4
8.3.5 Multi-Layer Insulating Blanket (MLI)..................99
8.3.6 Contamination Control.................................99
8.4 TT&C Interfaces...................................................100
9. STRUCTURE SUBSYSTEM.......................................................101
9.1 Functional Description.............................................101
9.2 Performance Requirements...........................................101
9.3 Design Requirements................................................101
10 MECHANISMS................................................................103
10.1 Design Requirements...............................................103
10.2 TT&C Interfaces...................................................104
11. PYROTECHNIC AND ELECTROEXPLOSIVE DEVICES.................................105
Attachment:
Annex A Radiation Environment Specification, Issue C, 13 October 1995
15 January 1997 CONFIDENTIAL Issue 4
PART 3(A)
ANNEX A
RADIATION ENVIRONMENT SPECIFICATION
'REDLINED' AND AMENDED 10 OCTOBER 1995
'REDLINED' AND AMENDED 13 OCTOBER 1995
=======================================
15 January 1997 CONFIDENTIAL Issue 4
TABLE OF CONTENTS
1. INTRODUCTION.............................................................1
2. SYNCHRONOUS ORBIT CONDITIONS..............................................1
2.1 Electrons............................................................1
2.2 Protons..............................................................2
2.3 Alpha Particles......................................................2
2.4 Cosmic Ray Radiation.................................................3
2.5 Ultraviolet Radiation................................................4
2.6 Plasma...............................................................4
2.7 Micrometeroids.......................................................5
3. TRANSFER ORBIT CONDITIONS.................................................5
3.1 Transfer Orbit Electron Flux Values..............................5
3.2 Transfer Orbit Proton Flux Values................................5
15 January 1997 CONFIDENTIAL Issue 4
ORION SATELLITE
CORPORATION
PART 3(B)
ORION 2 SPACECRAFT
PRODUCT ASSURANCE
REQUIREMENTS
Issue: 4
Dated: 15 January 1997
Signed: Date:
On behalf of ORION Satellite Corporation
Signed: Date:
On behalf of Matra Marconi Space UK Limited
Part 3(B) ORION 2 Spacecraft Product Assurance Requirements page xvii
CONFIDENTIAL
28 June 1996 Issue 3
TABLE OF CONTENTS
1. INTRODUCTION..............................................................1
1.1 Scope............................................................1
1.2 Product Assurance Objectives.....................................1
2. PRODUCT ASSURANCE REQUIREMENTS............................................3
2.1 Product Assurance Plan...........................................3
2.2 Organization and Management......................................3
2.3 Reporting........................................................3
2.4 Non-Conformance..................................................4
2.5 Contract Change Management.......................................4
2.5.1 Change Classification...................................4
2.5.2 Preliminary Change Assessment...........................5
2.5.3 Change Request (CR).....................................5
2.5.4 Contract Change Notice (CCN)............................6
2.5.5 Review and Approval of a Change.........................7
2.5.6 Change Review Board.....................................7
2.5.7 Implementation of a Change by the Contractor............8
2.5.8 Directed Changes........................................8
2.5.9 Go Ahead Procedure......................................8
2.5.10 CR/CCN Log..............................................9
2.5.11 ▇▇▇▇▇▇▇ and Deviations..................................9
3. REVIEWS AND AUDITS.......................................................11
3.1 Design Reviews..................................................11
3.1.1 Review Chairperson and Review Board....................12
3.1.2 Review Notification....................................12
3.1.3 Data Packages..........................................12
3.1.4 Review Procedures......................................12
3.1.5 Review Summary.........................................13
3.1.6 Review Completion......................................13
3.1.7 Subsystem and Unit Design Reviews......................13
3.1.7.1 Unit and Subsystem Preliminary Design Reviews..........14
3.1.7.2 Unit and Subsystem Critical Design Reviews.............14
3.1.7.3 Communications Subsystem Final Design Review...........15
3.1.7.4 Unit Qualification Design Review.......................15
3.1.8 Spacecraft System Design Reviews.......................15
3.1.8.1 System Preliminary Design Review.......................16
3.1.8.2 System Critical Design Review..........................16
CONFIDENTIAL
28 June 1996 Issue 3
3.1.8.3 System Final Design Review.............................16
3.2 Test Reviews....................................................17
3.3 Preshipment Review..............................................17
3.4 Further Reviews and Inspections.................................18
3.5 Design Review Documentation.....................................19
3.6 Test Review Documentation.......................................19
3.7 Program Audits..................................................20
3.8 ORION Right of Access...........................................20
4. SUBCONTRACTOR AND SUPPLIER MANAGEMENT....................................21
4.1 Subcontractor/Supplier Product Assurance Plan...................21
4.2 Requirements....................................................21
4.3 Reviews and Controls............................................21
5. RELIABILITY ASSURANCE....................................................22
5.1 Reliability Analysis............................................22
5.2 Parts Derating and Stress Analysis..............................23
5.3 Failure Modes, Effects, and Criticality Analyses................23
5.4 Worst-Case Analysis (WCA).......................................24
5.5 Critical Items Control..........................................25
5.6 Design Verification Matrix (DVM)................................26
5.7 Qualification Status List (QSL).................................26
6. QUALITY ASSURANCE........................................................27
6.1 Quality Assurance...............................................27
6.2 Procurement and Fabrication.....................................27
6.3 Test and Inspection.............................................27
6.4 Workmanship Standards...........................................28
6.5 Quality Records and Traceability................................28
6.6 Non-Conformance Control.........................................28
6.6.1 Non-Conformance Reporting..............................29
6.6.2 Non-Conformance/Failure Review and Disposition.........29
6.6.3 Failure Analysis and Corrective Action.................29
7. PARTS PROCUREMENT........................................................30
7.1 Parts Procurement and Control...................................30
7.2 Organization and Responsibilities...............................30
7.3 Selection and Application.......................................30
7.4 Quality Provisions..............................................31
7.5 Radiation.......................................................32
7.6 Lot Transfer....................................................32
CONFIDENTIAL
28 June 1996 Issue 3
7.7 Traceability....................................................32
7.8 Hybrids, MCMs, Battery Cells, TWTs, and Magnetics...............32
7.9 Traveling Wave Tube Amplifiers..................................33
7.10 Parts Documentation............................................34
8. MATERIALS AND PROCESSES..................................................35
8.1 Materials and Process Control...................................35
8.2 Organization....................................................35
8.3 Critical Materials and Processes................................35
8.4 Materials and Process Selection.................................35
8.5 Materials and Process Documentation.............................36
9. SOFTWARE QUALITY ASSURANCE...............................................37
9.1 Software Quality Assurance Plan.................................37
9.2 Software Development............................................37
9.3 Configuration Control...........................................37
9.4 Verification and Acceptance Testing.............................37
9.5 Non-Conformance Control.........................................38
10. CONFIGURATION MANAGEMENT.................................................39
10.1 Configuration Management.......................................39
10.2 Configuration Identification and Control.......................39
10.3 Change Control.................................................40
10.4 Configuration Verification.....................................40
10.5 Configuration Status Accounting and Documentation..............40
11. SAFETY...................................................................41
11.1 General........................................................41
11.2 Hazardous Conditions...........................................41
11.3 Safety and Hazard Analyses.....................................41
12. Launch Vehicle...........................................................42
12.1 Introduction...................................................42
12.2 Reporting......................................................42
12.3 Reviews........................................................42
12.3.1 Mission Specific Preliminary Design Review(PDR)...........42
CONFIDENTIAL
28 June 1996 Issue 3
12.3.2 Mission Specific Critical Design Review (CDR).............42
12.3.3 System Review.............................................42
12.3.4 Pre Shipment Review.......................................43
12.3.5 Review Summary and Action Items...........................43
12.4 Launch Readiness Review........................................43
APPENDIX 1 REVIEW ITEM DISCREPANCY FORM......................................44
APPENDIX 2 CHANGE REQUEST FORM...............................................45
APPENDIX 3 CONTRACT CHANGE NOTICE FORM.......................................46
APPENDIX 4 REQUEST FOR DEVIATION/WAIVER FORM.................................47
APPENDIX 5 NON-CONFORMANCE REPORT FORM.......................................48
CONFIDENTIAL
28 June 1996 Issue 3
ORION SATELLITE CORPORATION
PART 3(C)
ORION 2 SPACECRAFT ON-GROUND
TEST REQUIREMENTS
Issue: 4
Dated: 15 January 1997
Signed: Date:
On behalf of ORION Satellite Corporation
Signed: Date:
On Behalf of Matra Marconi Space UK Limited
CONFIDENTIAL
28 June 1996 Issue 3
TABLE OF CONTENTS
1. INTRODUCTION..............................................................1
2. GENERAL COMMENTS..........................................................2
2.1 Test Philosophy......................................................2
2.2 Definitions..........................................................3
2.3 Test Requirements....................................................4
2.3.1 General...................................................5
2.3.2 Test Equipment and Test Facility Requirements.............6
2.3.3 Zero-G Testing............................................6
2.3.4 Acceptance Tests..........................................7
2.3.5 Protoflight Tests.........................................7
2.3.6 Qualification Tests.......................................
2.4 WITNESSING OF TESTS..................................................8
2.5 TEST DATA............................................................9
2.6 TEST REVIEWS.........................................................9
2.7 DOCUMENTATION........................................................9
2.8 ORGANIZATION.........................................................9
3. UNIT, SUBSYSTEM AND SPACECRAFT TEST PROGRAM .............................10
3.1 EQUIPMENT CATEGORIZATION............................................
3.2 TEST PROGRAM OVERVIEW...............................................10
4. PROTOFLIGHT TESTS........................................................25
4.1 Unit Protoflight Tests..............................................25
4.2 Subsystem Protoflight Tests.........................................31
4.2.1 Repeater Subsystem.......................................31
4.2.2 Antenna Subsystem........................................32
4.2.3 Telemetry, Tracking, and Command (TT&C) Subsystem........
4.2.4 AOCS Subsystem Protoflight Dynamic Test
4.2.5 Propulsion Subsystem.....................................36
4.2.6 Power Subsystem..........................................36
4.2.6.1 Solar Array............................................36
4.2.6.2 Battery Assembly.......................................39
4.2.7 Structure Subsystem Protoflight Test.....................39
4.2.8 Thermal Subsystem Protoflight Test.......................37
4.3 Spacecraft Protoflight Test.........................................38
4.3.1 Integration Tests........................................38
CONFIDENTIAL
28 June 1996 Issue 3
4.3.2 Integrated System Test..................................38
4.3.3 Electro Magnetic Compatibility (EMC) Test...............40
4.3.4 RF Health Check.........................................40
4.3.5 Electro Static Discharge (ESD) Test.....................41
4.3.6 Spacecraft Alignment Test...............................43
4.3.7 Sinusoidal Vibration....................................42
4.3.8 Post-Sinusoidal Vibration Functional Tests..............42
4.3.9 Acoustic Vibration Test.................................44
4.3.10 Post-Acoustic Vibration Functional Tests................44
4.3.11 Shock and Deployment Tests..............................44
4.3.12 Post-Launch Environment Performance Test................45
4.3.13 Thermal Balance/Thermal Vacuum Test.....................45
4.3.14 Final Performance Test..................................47
4.3.15 RF Range Test...........................................45
4.3.16 Spacecraft Mass Properties Measurements.................46
5. FLIGHT ACCEPTANCE TESTS..................................................54
5.1 Unit Acceptance Tests...............................................54
5.1.1 PIM......................................................55
5.1.2 Power Handling MP and GP................................55
5.2 Subsystem Acceptance Tests..........................................55
5.2.1 Antenna Subsystem........................................56
5.2.2 Attitude and Orbit Control Subsystem (AOCS)..............56
5.2.3 Power Subsystem..........................................56
5.2.4 Structure Subsystem Acceptance Tests.....................56
5.2.5 Thermal Subsystem........................................57
5.2.6 Platform Harness.........................................57
5.3 Spacecraft Acceptance Test..........................................56
6. LIFE TESTS...............................................................59
7. DEVELOPMENT AND QUALIFICATION TEST.......................................60
7.1 Communications Subsystem Tests......................................60
7.1.1 Antenna Unit and Subsystem Test..........................60
7.1.2 Repeater Units...........................................61
7.2 Structure Subsystem Tests...........................................61
7.2.1 Structure Static Test....................................61
7.3 AOCS Subsystem Qualification Tests..................................61
7.3.1 AOCS Subsystem Dynamic Tests.............................61
7.3.2 Liquid Slosh Test........................................61
7.4 Propulsion Subsystem Qualification Tests............................61
7.4.1 General..................................................62
7.4.2 Thrusters................................................62
CONFIDENTIAL
28 June 1996 Issue 3
7.4.3 Liquid Apogee/Perigee Engines............................63
7.4.4 Propellant Tank..........................................62
7.4.5 Subsystem Verification Test..............................63
7.5 Thermal Subsystem...................................................63
7.5.1 Thermal Surfaces.........................................64
7.5.2 Heat Pipes...............................................64
7.6 Mechanisms..........................................................65
8. INTERFACE COMPATIBILITY TESTS............................................65
8.1 Ground Control System Compatibility.................................66
8.2 Launch Vehicle Compatibility........................................66
9. LAUNCH PREPARATION TEST..................................................67
9.1 General.............................................................67
9.2 Launch Site Functional Test.........................................67
9.3 Launch Preparation Functional Tests.................................68
9.4 Post-Encapsulation and Launch Pad Tests.............................69
10. DESIGN VERIFICATION MATRICES (DVM)......................................70
10.1 Design Verification................................................69
11. TEST CONFIGURATION MATRICES.............................................87
11.1 Introduction.......................................................87
11.2 Repeater Test Configurations.......................................87
11.2.1 Overall Guidelines......................................87
11.2.2 Subsystem Level.........................................88
11.2.3 Spacecraft Level........................................88
11.2.4 RF Link Calibrations....................................89
11.2.5 Performance Parameters..................................89
11.3 Antenna Test Configurations........................................90
11.3.1 Unit/Subsystem Level....................................90
11.3.2 Spacecraft Level........................................91
CONFIDENTIAL
28 June 1996 Issue 3
ORION SATELLITE CORPORATION
PART 3(D)
ORION 2 IN-ORBIT COMMISSIONING
AND
ACCEPTANCE TEST REQUIREMENTS
Issue: 3
Dated: 28 June 1996
Signed: Date:
On behalf of ORION Satellite Corporation
Signed: Date:
On behalf of Matra Marconi Space UK Limited
28 June 1996 Issue 3
PART 3(D)
IN-ORBIT COMMISSIONING
AND
ACCEPTANCE TEST REQUIREMENTS
CONTENTS
NO. PAGE
1. SCOPE............................................................ 1
2. DEFINITIONS...................................................... 1
3. INTRODUCTION..................................................... 2
4. COMMISSIONING.................................................... 4
4.1 Commissioning Activities.................................. 4
4.2 Documentation............................................. 5
5. ACCEPTANCE TESTING............................................... 6
5.1 Aggregate Predicted Transponder Life...................... 6
5.2 Transponder Acceptance Tests.............................. 8
5.3 Determination of other Spacecraft Parameters............. 12
5.4 Documentation............................................ 15
6. POST ACCEPTANCE TRANSPONDER TESTING............................. 18
ANNEX A GROUND TEST FACILITY CONCEPT............................. 20
ANNEX B COMMISSIONING ACTIVITIES................................. 23
ANNEX C TRANSPONDER PERFORMANCE TESTS............................ 30