EX-10.2 5 d89142ex10-2.txt AMENDED/RESTATED CONTRACT DATED 2/1/01 1 EXHIBIT 10.2 AMENDED AND RESTATED CONTRACT BETWEEN ECHOSTAR ORBITAL CORPORATION AND SPACE SYSTEMS/LORAL, INC. ECHOSTAR 8 SATELLITE PROGRAM (110 DEGREES W.L.) This document contains data and information proprietary to Space Systems/Loral, Inc. and EchoStar Orbital Corporation. This data shall not be disclosed, disseminated or reproduced, in whole or in part, without the express prior written consent of Space Systems/Loral, Inc. and EchoStar Orbital Corporation except as otherwise provided in this Contract. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 2 TABLE OF CONTENTS PREAMBLE.....................................................................3 RECITALS.....................................................................4 ARTICLE 1 - DEFINITIONS......................................................5 ARTICLE 2 - SCOPE OF WORK....................................................9 ARTICLE 3 - DELIVERABLE ITEMS AND DELIVERY SCHEDULE..........................9 ARTICLE 4 - PRICE...........................................................10 ARTICLE 5 - PAYMENT.........................................................11 ARTICLE 6 - PURCHASER-FURNISHED ITEMS.......................................15 ARTICLE 7 - COMPLIANCE WITH U.S. EXPORT LAWS AND DIRECTIVES.................17 ARTICLE 8 - ACCESS TO WORK IN PROGRESS......................................18 ARTICLE 9 - SATELLITE PRE-SHIPMENT REVIEW (SPSR)............................22 ARTICLE 10 - SATELLITE ACCEPTANCE...........................................25 ARTICLE 11 - ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER THAN SATELLITES.....................................................26 ARTICLE 12 - DELIVERY, TITLE AND RISK OF LOSS...............................28 ARTICLE 13 - [CONFIDENTIAL INFORMATION REDACTED]............................29 ARTICLE 14 - INTENTIONALLY DELETED..........................................29 Article 15 - WARRANTY.......................................................30 ARTICLE 16 - CHANGES........................................................34 ARTICLE 17 - FORCE MAJEURE..................................................35 ARTICLE 18 - PURCHASER DELAY OF WORK........................................37 ARTICLE 19 - PATENT INDEMNITY...............................................38 ARTICLE 20 - INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE................40 ARTICLE 21 - TERMINATION FOR CONVENIENCE....................................42 ARTICLE 22 - [CONFIDENTIAL INFORMATION REDACTED]............................45
[SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 1 3 ARTICLE 22A - [CONFIDENTIAL INFORMATION REDACTED]...........................45 ARTICLE 23 - DEFAULT........................................................45 ARTICLE 24 - INTENTIONALLY DELETED..........................................48 ARTICLE 25 - ARBITRATION....................................................48 ARTICLE 26 - INTER-PARTY WAIVER OF LIABILITY FOR A LAUNCH...................49 ARTICLE 27 - CORRECTIVE MEASURES............................................51 ARTICLE 28 - RESERVED.......................................................51 ARTICLE 29 - [CONFIDENTIAL INFORMATION REDACTED]............................51 ARTICLE 30 - MOST FAVORED NATION............................................51 ARTICLE 31 - RESERVED.......................................................51 ARTICLE 32 - RESERVED.......................................................51 ARTICLE 33 - GROUND STORAGE.................................................52 ARTICLE 34 - LIMITATION OF LIABILITY........................................53 ARTICLE 35 - DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION.............54 ARTICLE 36 - INTELLECTUAL PROPERTY RIGHTS - RIGHTS IN DATA..................57 ARTICLE 37 - PUBLIC RELEASE OF INFORMATION..................................59 ARTICLE 38 - NOTICES........................................................59 ARTICLE 39 - [CONFIDENTIAL INFORMATION REDACTED]............................60 ARTICLE 40 - ORDER OF PRECEDENCE............................................60 ARTICLE 41 - GENERAL........................................................61 ARTICLE 42 - ATTACHMENTS....................................................64 ARTICLE 43 - TERMINATION RIGHT..............................................65 ARTICLE 44 - COOPERATION REGARDING SPOT BEAMS...............................65 ARTICLE 45 - [CONFIDENTIAL INFORMATION REDACTED]............................66 ARTICLE 46 - KEY PERSONNEL..................................................66
[SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 2 4 PREAMBLE This Amended and Restated Contract is made and effective as of February 1, 2001 by and between EchoStar Orbital Corporation and Space Systems/Loral, Inc., regarding the EchoStar 8 Satellite Program (110 degrees W.L.) (the "Contract") and amends and restates that certain Contract entered into as of February 4, 2000 (the "Effective Date of Contract" or "EDC") between EchoStar Orbital Corporation, organized and existing under the laws of the State of Colorado having an office and place of business at 5701 South Santa Fe, Littleton, Colorado 80120 (hereinafter referred to as "Purchaser") and Space Systems/Loral, Inc., a corporation organized and existing under the laws of the State of Delaware, having an office and place of business at 3825 Fabian Way, Palo Alto, California 94303 (hereinafter referred to as "Contractor"). [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 3 5 RECITALS WHEREAS, Purchaser desires to procure one (1) communications satellite, known as EchoStar 8, to be delivered to the Launch Site, risk management therefor, all required ground equipment and support and training services, to the extent and subject to the terms and conditions set forth herein, and WHEREAS, Contractor is willing to furnish such Satellite, risk management, ground equipment and support and training services, to the extent and subject to the terms and conditions set forth herein, in consideration of the Firm Fixed Price and other valid consideration. NOW, THEREFORE, the Parties hereto agree as follows: [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 4 6 ARTICLE 1 - DEFINITIONS Capitalized terms used and not otherwise defined herein shall have the following meanings: 1.1 "ACCEPTANCE" (i) with respect to a Satellite shall be as provided for in Article 10, and (ii) with respect to any Deliverable Item other than a Satellite shall be as provided for in Article 11. 1.2 "ADDITIONAL SATELLITE" has the meaning set forth in Article [CONFIDENTIAL INFORMATION REDACTED]. 1.3 "AFFILIATE" means, with respect to a Party, any person or entity directly or indirectly controlling, controlled by or under common control with such Party. 1.4 "CONTRACT" means the articles of this executed Contract, its Exhibits and its Attachment(s), as may be amended from time to time in accordance with the terms hereof. 1.5 "CONTRACTOR" has the meaning set forth in the preamble and any successor or assignee permitted hereunder. 1.6 "DELIVERABLE DATA" means the data and documentation required to be delivered to Purchaser as specified in the Statement of Work. 1.7 "DELIVERABLE ITEM" means any of the items listed in Article 3.1, and any Additional Satellite or other items ordered by Purchaser pursuant to Article [CONFIDENTIAL INFORMATION REDACTED], and, collectively, the "DELIVERABLE ITEMS". 1.8 "DELIVERY" (i) with respect to a Satellite shall be as provided for in Article 12.1, and (ii) with respect to any Deliverable Item other than a Satellite shall be as provided for in Article 12.2. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 5 7 1.9 "EFFECTIVE DATE OF CONTRACT" or "EDC" means the effective date of this Contract as specified in the preamble. 1.10 "FCC" means the Federal Communications Commission or any successor agency or governmental authority. 1.11 "FIRM FIXED PRICE" has the meaning set forth in Article 4.1. 1.12 "FORCE MAJEURE" has the meaning set forth in Article 17. 1.13 "GROSS NEGLIGENCE" means reckless disregard for the rights of others which very closely approaches intentional wrongdoing or other actions (or failures to act) which very closely approach intentional wrongdoing. 1.14 "IN-ORBIT TESTING" or "IOT" means the testing of a Satellite on-orbit in accordance with the Program Test Plan. 1.15 "INTELLECTUAL PROPERTY CLAIM" has the meaning set forth in Article 19. 1.16 "INTENTIONAL IGNITION" means, with respect to a Satellite, the official time designated by the Launch Agency during the launch sequence when the initial motors of the Launch Vehicle are ignited for the purpose of Launch following a planned countdown. 1.17 "LAUNCH" means, with respect to a Satellite, Intentional Ignition followed by Lift-Off. 1.18 "LAUNCH AGENCY" means the provider responsible for conducting the Launch Services for a Satellite. 1.19 "LAUNCH SERVICES" means those services provided by the Launch Agency pursuant to the Launch Services Agreement. 1.20 "LAUNCH SERVICES AGREEMENT" or "LSA" means the contract between Purchaser and the Launch Agency which provides for Launch [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 6 8 Services for a Satellite, as such contract may be amended from time to time in accordance with its terms. 1.21 "LAUNCH SITE" means the location that will be used by the Launch Agency for purposes of launching a Satellite. 1.22 "LAUNCH SUPPORT" or "LAUNCH SUPPORT SERVICES" means those services specified in the Statement of Work to be provided by Contractor in support of Launch. 1.23 "LAUNCH VEHICLE" means the launch vehicle selected by Purchaser and used for Launch of a Satellite, which is baselined to be an [CONFIDENTIAL INFORMATION REDACTED] launch vehicle, unless changed under Article [CONFIDENTIAL INFORMATION REDACTED]. 1.24 "LIBOR" means the rate of interest per annum, at any relevant time, at which thirty (30) day U.S. dollar deposits are offered at such time in the London interbank market. 1.25 "LIFT-OFF" means, with respect to a Satellite, physical separation of the Launch Vehicle from the ground support equipment following Intentional Ignition due to the Launch Vehicle rising under its own power for the purpose of launching a Satellite. 1.26 "MISSION OPERATIONS SUPPORT SERVICES" means the orbit-raising, IOT and related services specified in the Statement of Work to be performed by Contractor for a Satellite. 1.27 "NSP" means not separately priced. 1.28 "PARTY" or "PARTIES" means Purchaser, Contractor or both, as the context requires. 1.29 "PAYMENT PLAN" means the payment plan for the applicable Deliverable Item, attached as Attachment A. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 7 9 1.30 "PERFORMANCE SPECIFICATION" means the Satellite performance specification attached as Exhibit B, as such Exhibit may be amended from time to time in accordance with the terms of this Contract. 1.31 "PMO" means the Purchaser's program management office. 1.32 "PRODUCT ASSURANCE PROGRAM PLAN" means the product assurance program plan attached as Exhibit C, as such Exhibit may be amended from time to time in accordance with the terms of this Contract. 1.33 "PROGRAM TEST PLAN" means the Satellite program test plan attached as Exhibit D, as such Exhibit may be amended from time to time in accordance with the terms of this Contract. 1.34 "PROPRIETARY INFORMATION" has the meaning set forth in Article 35. 1.35 "PURCHASER" has the meaning set forth in the preamble and any successor or assignee permitted hereunder. 1.36 "SATELLITE" means a communications satellite that is to be manufactured by Contractor pursuant to this Contract. 1.37 "SATELLITE ANOMALY" means, with respect to any Satellite, any occurrence that occurs at or after Intentional Ignition and has or could have an impact on a Satellite's health or performance of such Satellite. 1.38 "SATELLITE PRE-SHIPMENT REVIEW" or "SPSR" has the meaning set forth in Article 9. 1.39 "SCF" means satellite control facility. 1.40 "STATEMENT OF WORK" or "SOW" means the statement of work attached as Exhibit A, as such Exhibit may be amended from time to time in accordance with the terms of this Contract. 1.41 "TT&C" means telemetry, tracking and control. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 8 10 ARTICLE 2 - SCOPE OF WORK 2.1 Provision of Services and Materials Contractor shall provide the necessary personnel, material, services, and facilities to: design, manufacture, test, and deliver to the location set forth in Article 3.1 (or another location agreed upon pursuant to Article [CONFIDENTIAL INFORMATION REDACTED]), one (1) Satellite, together with all other Deliverable Items referred to in Article 3.1, in accordance with the following Exhibits, which are attached hereto and made a part hereof: 2.1.1 Exhibit A, Statement of Work, dated April 19, 2000 (Document Reference No. 17/EchoStar-8/E8SOW New 1/-4/6/00); 2.1.2 Exhibit B, Satellite Performance Specification, dated April 25, 2000, Rev. 6; 2.1.3 Exhibit C, Product Assurance Program Plan Part One, dated May 11, 2000 (Document Reference No. E224145, Rev. 1) and Product Assurance Program Plan Part Two, dated February 14, 2000 (Document Reference No. E038152, Rev. 4); 2.1.4 Exhibit D, Satellite Program Test Plan, dated April 19, 2000 (Doc No. 17/EchoStar8/E8TP1 doc/-3/27/00). ARTICLE 3 - DELIVERABLE ITEMS AND DELIVERY SCHEDULE 3.1 Deliverable Items Subject to the other terms and conditions of this Contract, the items to be delivered under this Contract are specified in the table below and the corresponding delivery schedules and locations are as follows: [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 9 11
ITEM DESCRIPTION DELIVERY SCHEDULE DELIVERY LOCATION ---- ----------- ----------------- ----------------- 1. Satellite [CONFIDENTIAL [CONFIDENTIAL INFORMATION (EchoStar 8) INFORMATION REDACTED] REDACTED] 2. Deliverable Data Per SOW, Exhibit A PMO 3. Support and Training Per SOW, Exhibit A Contractor's facilities and Purchaser's SCF 4. Ground Equipment Per SOW, Exhibit A Purchaser's SCF 5. Risk Management Services Per Article 39 Contractor's facilities
Contractor shall, at its cost, use its reasonable best efforts to obtain all U.S. and foreign Government approvals necessary to export and import a Satellite, all Deliverable Items and Deliverable Data required hereunder, and the individual components of the applicable Satellite and such Deliverable Items and Deliverable Data. ARTICLE 4 - PRICE 4.1 Firm Fixed Price The total price to be paid by Purchaser to Contractor for the Deliverable Items 1 through 4 set forth in Article 3.1 within the scope of work detailed in the Statement of Work, shall be a firm fixed price of [CONFIDENTIAL INFORMATION REDACTED] (the "Firm Fixed Price"). The total price to be paid by Purchaser to Contractor for Deliverable Item 5 set forth in Article 3.1 within the scope of work detailed in Article 39 shall be a firm fixed price equal to [CONFIDENTIAL INFORMATION REDACTED] for any risk management insurance policy(ies) procured by Contractor pursuant to Article 39. The prices for those Deliverable Items subject to an option under this Contract, if any, are described in the [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 10 12 particular Articles that set forth those options. The itemization of the Firm Fixed Price is as follows:
Item Description Amount ---------------- ------ Satellite (EchoStar 8) [CONFIDENTIAL INFORMATION REDACTED]
The Firm Fixed Price for such Satellite includes all design, manufacturing, tests, In Orbit Incentives, Deliverable Data, training, Launch Support Services, Mission Operations Support Services, ground equipment and shipment and transportation, all in accordance with the terms and conditions of this Contract, as specified herein. The item price also includes, and Contractor shall indemnify, defend and hold Purchaser, its Affiliates, directors, officers, employees, shareholders and agents harmless from and against, all applicable taxes, duties and similar liabilities whatsoever imposed by any governmental entity in connection with the performance of this Contract, except any tax on the sale to Purchaser resulting from Purchaser's election to exercise the Ground Storage option in Article 33. The Firm Fixed Price does not include the cost of any risk management insurance procured by Contractor pursuant to Article 39 below. ARTICLE 5 - PAYMENTS 5.1 Payment Plan Absent a bona fide dispute, payments by Purchaser to Contractor of the Firm Fixed Price set forth in Article 4 and of the amounts for options, if any, exercised by Purchaser pursuant to this Contract, shall be in accordance with the Payment Plan applicable thereto. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 11 13 5.2 Payment Conditions 5.2.1 Payments. Absent a bona fide dispute, all payments due from Purchaser (other than payments for risk management services, which shall be made in accordance with the payment terms set forth in Article 39) shall be paid no later than the date specified therefor as set forth in the Payment Plan, provided that: (i) Contractor submits to Purchaser an invoice with respect to each such payment no later than [CONFIDENTIAL INFORMATION REDACTED] days prior to such due date; and (ii) Contractor completes the applicable milestone set forth in Attachment A no later than [CONFIDENTIAL INFORMATION REDACTED] days prior to such due date. Notwithstanding the foregoing, in the event that Contractor does not deliver an invoice to Purchaser at least [CONFIDENTIAL INFORMATION REDACTED] days prior to such due date and/or does not achieve the relevant milestone, or provide a work-around that does not affect schedule and is otherwise acceptable to Purchaser, at least [CONFIDENTIAL INFORMATION REDACTED] days prior to such due date, Purchaser may suspend all payments until such time as the relevant invoice is received and milestone is completed. Within [CONFIDENTIAL INFORMATION REDACTED] days following Purchaser's receipt of the relevant invoice [CONFIDENTIAL INFORMATION REDACTED] days following Contractor's completion of the relevant milestone, whichever occurs later, Purchaser shall pay Contractor for all payments that were required to have been made but were not as a result of the suspension. 5.2.2 Milestones. Notwithstanding the milestones set forth in Attachment A, if it becomes reasonably clear that problems [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 12 14 with deliverables are reasonably likely to cause schedule delays, then all payments may be suspended, at Purchaser's option, and the date for payment of each subsequent payment delayed, by an amount of time equal to the difference between the originally scheduled delivery date for the Satellite set forth in Article 3 and the revised forecast delivery date. In the event that Contractor subsequently recovers all or a portion of the originally scheduled delivery date for the Satellite, payments will again be revised to reflect that recovery. Further, if, following completion of a milestone, a problem arises which requires rework of elements of the milestone, then payments may be suspended, at Buyer's option, until the milestone is again complete. 5.2.3 Non-Warranty Payments. Absent a bona fide dispute, all amounts payable to Contractor with respect to non-warranty work performed pursuant to Article 15.3 shall be paid no later than [CONFIDENTIAL INFORMATION REDACTED] days after submission of an invoice by Contractor certifying that such non-warranty work has been completed. 5.2.4 Obligation to Pay. The failure of Contractor to deliver any invoice required hereunder shall not affect Purchaser's obligation hereunder to make any payments to Contractor. If Contractor shall not have delivered any invoice required hereunder within the time specified therefor, subject to the terms and conditions of this Article 5, the relevant payment due from Purchaser shall be payable [CONFIDENTIAL INFORMATION REDACTED] days after receipt of such invoice. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 13 15 5.3 Late Payment Except in the case of a bona fide dispute, in the event that any payment owed by one Party to the other Party is not made when due hereunder, without prejudice to the second Party's other rights and remedies under this Contract, at law or in equity, the first Party shall pay the other Party interest at the rate of [CONFIDENTIAL INFORMATION REDACTED] on the unpaid balance thereof from the date such payment is due hereunder until such time as payment is made. If a payment due to Contractor from Purchaser is not made by the date [CONFIDENTIAL INFORMATION REDACTED] days after the date due hereunder, without prejudice to Contractor's other rights and remedies under this Contract, at law or in equity, Contractor may elect to cease performance of its obligations under this Contract, without prejudice or penalty. In such case, if Contractor subsequently resumes performance in lieu of termination pursuant to Article 23.5, the schedule, price and other affected provisions of this Contract shall be modified to compensate Contractor for its added reasonable, actual out-of-pocket costs plus a profit of [CONFIDENTIAL INFORMATION REDACTED] associated with such work stoppage. Notwithstanding the foregoing, in the event of a bona fide dispute between the Parties regarding a payment due hereunder, such dispute shall be resolved pursuant to Article 25 hereof, and Contractor shall have no right during the pendancy of such dispute to stop work under this Contract because of such dispute. 5.4 Invoices Invoices required to be delivered by Contractor hereunder shall be submitted to Purchaser (original plus one (1) copy) at the following address: [CONFIDENTIAL INFORMATION REDACTED] or to such other address as Purchaser may specify in writing to Contractor. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 14 16 5.5 Payment Bank All payments made to Contractor hereunder shall be in U.S. currency and shall be made by electronic funds transfer to the following account: [CONFIDENTIAL INFORMATION REDACTED] or by check to: [CONFIDENTIAL INFORMATION REDACTED] or to such other account or address as Contractor may specify in writing to Purchaser. ARTICLE 6 - PURCHASER-FURNISHED ITEMS 6.1 Purchaser-Furnished Support To enable Contractor to perform Launch Support and Mission Operations Support Services, Purchaser shall timely make available to Contractor the Purchaser-furnished equipment, facilities and services described in the Statement of Work. Such equipment, facilities and services shall be in good working condition and adequate for the required purpose and shall be made available free of charge for Contractor's use (including Acceptance inspection pursuant to Article 11) during the period commencing [CONFIDENTIAL INFORMATION REDACTED] prior to such Launch and continuing through completion of the IOT review. Purchaser and Contractor will conduct an interface meeting [CONFIDENTIAL INFORMATION REDACTED] prior to such Launch to confirm the availability and adequacy of Purchaser-furnished equipment, facilities and services. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 15 17 6.2 Communications Authorizations Purchaser shall be responsible, at its cost and expense, for preparing, coordinating and filing all applications for licenses with the FCC, if required to do so, for the Launch and operation of the Satellite. Contractor shall timely provide Purchaser with all reasonable assistance, at no additional cost to Purchaser, requested by Purchaser in connection with Purchaser's performance of the above-specified tasks, and in connection with the filing of any technical filings required to be made by Purchaser with the FCC. 6.3 Radio Frequency Coordination Purchaser shall be responsible for the timely preparation and submission of all filings required by the International Telecommunication Union (or any successor agency thereto) regarding radio frequency and orbital position coordination. Such filings shall be made in accordance with the Radio Regulations of the International Telecommunication Union (or any successor agency). Contractor shall timely provide Purchaser with all reasonable assistance, at no additional cost to Purchaser, requested by Purchaser in connection with Purchaser's performance of the above-specified tasks. 6.4 Licenses and Permits Except as set forth in Articles 6.2 and 6.3 above, Contractor shall be responsible, at its sole cost and expense, for securing any and all permits and licenses for the construction and transportation of a Satellite (other than FCC construction permits for a Satellite). 6.5 Satellite Performance Data In the event of a Satellite Anomaly that occurs during the life of a Satellite, Purchaser shall timely provide Contractor with or give [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 16 18 Contractor access to any data Contractor may reasonably require to investigate or correct (if Contractor is able to do so) such Satellite Anomaly or make or settle any insurance claim relating to such Satellite Anomaly. 6.6 Late Delivery of Purchaser-Furnished Items or Services The late delivery of Purchaser-furnished items, individually or combined, shall be considered an event beyond the reasonable control of Contractor, and Contractor shall be entitled to a reasonable adjustment in price, schedule, and other affected terms for such late delivery. ARTICLE 7 - COMPLIANCE WITH U.S. EXPORT LAWS AND DIRECTIVES 7.1 Technical Information, Deliverable Data and Technical Services 7.1.1 Any obligation of either Party hereunder to provide technical information, Deliverable Data or technical services to the other Party or its representatives shall be subject to applicable U.S. Government export control and security laws, regulations, policies and license conditions. The Parties shall work cooperatively and in good faith to implement this Contract consistent with such laws, regulations, policies and license conditions. 7.1.2 If and to the extent required by U.S. law, the Parties and/or their representatives shall enter into U.S. Government-approved agreement(s), separate from this Contract, governing the Party's provision of technical information, Deliverable Data or technical services in connection with this Contract. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 17 19 7.2 No Retransfer The Parties shall not transfer to any "foreign person", as defined in the International Traffic in Arms Regulations (22 C.F.R. Section 120.1) technical information, Deliverable Data or technical services furnished hereunder, except as expressly authorized by the U.S. Government in accordance with U.S. export control laws. THE PARTIES UNDERSTAND AND WARRANT THAT THEY SHALL NOT RE-EXPORT, TRANSFER OR DIVERT ANY ITEM EXPORTED UNDER OR IN CONNECTION WITH THIS CONTRACT TO ANY "FOREIGN PERSON" WITH A NATIONALITY OTHER THAN CONTRACTOR'S OR PURCHASER'S, RESPECTIVELY, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE U.S. GOVERNMENT. ARTICLE 8 - ACCESS TO WORK IN PROGRESS 8.1 Work in Progress at Contractor's Plant Subject to Article 7 and Article 8.5 and to compliance with Contractor's safety and security regulations, Purchaser's employees (and representatives, consultants or agents, subject to the prior approval of Contractor, which approval shall not be unreasonably withheld or delayed) shall be allowed access, in such a manner so as not to unreasonably disrupt the routine business operations of Contractor, to observe work being performed at Contractor's facility for the Satellite and other Deliverable Items, for the purpose of observing the progress of such work and otherwise confirming Contractor's compliance with this Contract. Notwithstanding anything to the contrary set forth herein, the fact that Purchaser has observed work performed hereunder shall not be deemed Purchaser's Acceptance or approval of such work. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 18 20 8.2 Work in Progress at Subcontractors' Plant Subject to Article 7 and Article 8.5, to the extent permitted by Contractor's subcontractors supplying services or goods in connection with the Satellite and subject to each such subcontractor's safety and security regulations, Contractor shall allow Purchaser's employees (and representatives, consultants or agents, subject to the prior approval of Contractor, which approval shall not be unreasonably withheld or delayed) access, in such a manner so as not to unreasonably disrupt the routine business operations of Contractor, to observe work being performed with respect to the Satellite in each such subcontractor's plants for the purpose of observing the progress of such work and otherwise confirming Contractor's compliance with this Contract, subject to the right of Contractor to accompany Purchaser on any such visit to a subcontractor's plant; provided, however, that Purchaser may conduct an unaccompanied observation in the event that Contractor fails to furnish a representative after reasonable written notice of Purchaser's observation request. Contractor will use reasonable efforts to obtain permission for such access to subcontractor's facilities. 8.3 Remedy for Non-Compliance Purchaser may inform Contractor in writing of any particulars in which Purchaser observes and reasonably believes that work being performed under this Contract is non-compliant, including the specific contract requirements believed to be non-compliant and the reasons for such belief, and Contractor shall remedy such non-compliance at Contractor's expense, promptly upon receipt of notice thereof. 8.4 On-Site Facilities for Purchaser's Personnel Subject to Article 7 and Article 8.5, for the purpose of monitoring the progress of the work to be performed by Contractor hereunder and [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 19 21 otherwise confirming Contractor's compliance with this Contract, Contractor shall provide private office facilities at or proximate to Contractor's plant (which private office facilities shall in all cases at least be co-located with Contractor's program management office) for two (2) resident employees of Purchaser (or Purchaser's duly appointed representatives, consultants and agents, subject to the prior approval of Contractor, which approval shall not be unreasonably withheld or delayed) for a reasonable period of time after the completion of the Satellite review described in Article 10.2. The office facilities to be provided shall include [CONFIDENTIAL INFORMATION REDACTED], to the extent necessary to enable such personnel to monitor the progress of work and otherwise confirm Contractor's compliance with this Contract. 8.5 Competition/ Foreign Persons as Purchaser Representatives Purchaser's representatives, consultants and agents shall not be in direct competition with Contractor, meaning they shall not currently be employed by companies or entities that are in the business of manufacturing communication satellites. Purchaser shall notify Contractor in writing of the name, title or function, business relationship, employer and such other information as may be reasonably requested by Contractor, with respect to each of its intended representatives, consultants and agents, and cause each such representative, consultant and agent to execute a confidentiality agreement directly with Contractor in form and substance reasonably satisfactory to Contractor and containing terms substantially the same as those set forth in Article 35. Contractor may deny access to Contractor provided office facilities to any representative, consultant or agent of Purchaser upon Contractor's reasonable determination that such consultant or agent is, by reason of its business or affiliations, in direct competition with Contractor. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 20 22 Contractor shall apply for and, once issued, maintain all U.S. Government export licenses and approvals needed for Purchaser's employees and representatives, agents and consultants who are citizens of a country other than the U.S., to access Contractor's and its subcontractors' facilities or technical data in connection with the performance of this Contract. Purchaser shall cooperate with Contractor and provide the support necessary for Contractor to apply for and maintain such export licenses and approvals, and shall promptly notify Contractor of any occurrence or change in circumstances of which it becomes aware that is relevant to or affects such export license and approvals. IN NO EVENT SHALL CONTRACTOR BE OBLIGATED UNDER THIS CONTRACT TO PROVIDE ACCESS TO CONTRACTOR FACILITIES, TO TRANSFER ANY TECHNICAL INFORMATION OR DELIVERABLE DATA OR TO PROVIDE ANY TECHNICAL SERVICES, TO ANY PERSON EXCEPT IN COMPLIANCE WITH APPLICABLE U.S. EXPORT CONTROL LAWS, REGULATIONS, POLICIES AND LICENSE CONDITIONS, AS REASONABLY CONSTRUED BY CONTRACTOR. 8.6 Interference with Operations Purchaser shall exercise its rights under this Article 8 in a manner that does not unreasonably interfere with Contractor's or its subcontractors' normal business operations or Contractor's performance of its obligations under this Contract or any agreement between Contractor and its subcontractors. 8.7 Notification Notwithstanding any other provision of this Contract, Contractor shall advise Purchaser immediately by telephone and confirm in writing any event, circumstance or development which materially threatens the quality of, or the delivery schedule for, any Satellite or component part thereof, as well as any other Deliverable Items to be provided hereunder. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 21 23 ARTICLE 9 - SATELLITE PRE-SHIPMENT REVIEW (SPSR) 9.1 Purchaser to Review Purchaser shall conduct a review of each Satellite prior to shipment by Contractor to the Launch Site in accordance with the terms of this Article 9 and the Statement of Work (each a "Satellite Pre-Shipment Review" or "SPSR"). 9.2 Time, Place and Notice of SPSR; Failure to Conduct Each SPSR shall take place at Contractor's facility. Contractor shall notify Purchaser in writing [CONFIDENTIAL INFORMATION REDACTED] days prior to the date that each Satellite shall be available for SPSR, which shall be the scheduled date for commencement of such SPSR. If Purchaser cannot commence such SPSR on such scheduled date, Contractor shall make reasonable efforts to accommodate Purchaser's scheduling requirements. 9.3 Conduct and Purpose of SPSR Each SPSR shall be conducted in accordance with the pertinent Sections of the Statement of Work. The purpose of each SPSR shall be to review test data and analyses for the subject Satellite to determine whether such Satellite meets applicable Performance Specification requirements and is therefore ready for shipment to the Launch Site. 9.4 Waivers or Pending Waivers At the earliest possible time, but [CONFIDENTIAL INFORMATION REDACTED] days before the commencement of the SPSR for the Satellite or the Acceptance inspection for any Deliverable Item pursuant to Article 11, Contractor shall submit to Purchaser any request for a waiver of, or deviation from, provisions(s) of the Performance Specification applicable to the Satellite or Deliverable Item. Each such waiver or deviation approved by Purchaser shall be [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 22 24 deemed an amendment to the Performance Specification permitting such waiver thereof, or deviation therefrom, effective on or after the date of such approval for the Satellite or Deliverable Item. Purchaser shall, in keeping with customary industry practice, consider each waiver or deviation request in good faith and shall not unreasonably withhold or delay its consent to any such request. 9.5 Purchaser's Inspection Agents Purchaser may, subject to prior written notice to Contractor, cause any representative, consultant or agent designated by Purchaser to observe the SPSR pursuant to this Article 9; provided, however, that the provisions of Article 7 and Article 8.5 shall apply to any such representative, consultant or agent. 9.6 SPSR Results Within a reasonable time after completion of the SPSR for the Satellite, Purchaser shall notify Contractor in writing of the results of the SPSR pursuant to this Article 9 with respect to the Satellite. Provided Purchaser is in compliance with its contractual obligations hereunder, such Satellite shall be prepared and shipped to the Launch Site for Launch upon successful completion of the SPSR. In the event that such SPSR discloses any non-conformance of the Satellite to the requirements of the Performance Specification not the subject of any waivers or deviations approved by Purchaser pursuant to Article 9.4, Purchaser's notice shall state each such non-conformance (with reference to the applicable requirement of the Performance Specification deemed not met), and Contractor shall correct or repair each such non-conformance and resubmit such Satellite for SPSR in accordance with this Article 9 as to each corrected or repaired element. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 23 25 9.7 Inspection of Equipment and Facilities Contractor shall make available to Purchaser such equipment and facilities as Purchaser may require to conduct any preshipment inspections. All costs and expenses incurred by Purchaser and its agents to dispatch its personnel for pre-shipment inspections, including travel and living expenses, shall be borne solely by Purchaser. 9.8 Correction of Deficiencies after SPSR If at any time following the SPSR for a Satellite, but prior to Launch, Contractor becomes aware that such Satellite fails to meet the Performance Specification, as may be modified as of such time pursuant to Article 9.4, Contractor shall promptly correct such deficiencies at its own cost and expense. 9.9 Warranty Obligations In no event shall Contractor be released from any of its warranty obligations as set forth in Article 15 hereof as a result of any Satellite having successfully passed the pre-shipment inspection set forth in this Article 9. 9.10 Repaired or Replaced Satellites The provisions of this Article 9 shall apply to corrected, repaired or replaced Satellites. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 24 26 ARTICLE 10 - SATELLITE ACCEPTANCE 10.1 Satellite Acceptance Acceptance of a Satellite by Purchaser shall occur [CONFIDENTIAL INFORMATION REDACTED]. 10.2 In-Orbit Test (IOT) Services [CONFIDENTIAL INFORMATION REDACTED] days prior to Launch of a Satellite, Contractor shall notify Purchaser of the IOT schedule. Purchaser may observe IOT at Purchaser's or Contractor's location, at Purchaser's election, subject to applicable U.S. Government or Contractor security or export restrictions. When, in the reasonable assessment of Contractor, the IOT review has been completed for a Satellite, Contractor shall submit the IOT results to Purchaser. Within [CONFIDENTIAL INFORMATION REDACTED] hours after Contractor provides the certified IOT results to Purchaser with respect to a Satellite, Contractor and Purchaser shall hold a Satellite review as defined in the SOW. Contractor may elect to conduct from Contractor's facilities the IOT eclipse test set forth in the Program Test Plan with respect to a Satellite during the first eclipse season after IOT is otherwise completed. The results of the later IOT eclipse test will be provided to Purchaser for Satellite performance characterization and insurance purposes only. 10.3 [CONFIDENTIAL INFORMATION REDACTED] [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 25 27 ARTICLE 11 - ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER THAN SATELLITES 11.1 Inspection of Deliverable Items of Hardware Other Than Satellites With respect to each Deliverable Item of hardware other than Satellites, Purchaser shall perform Acceptance inspection [CONFIDENTIAL INFORMATION REDACTED] days after Contractor has notified Purchaser that such Deliverable Item has arrived at the location designated for delivery thereof in Article 3.1. Such Acceptance inspection shall be conducted in accordance with the procedures described in the Statement of Work. The purpose of the Acceptance inspection shall be to determine whether each such Deliverable Item meets applicable Performance Specification requirements as of the date of such delivery, as such requirements may have been modified pursuant to Article 11.3. 11.2 Purchaser's Inspection Agents Purchaser may, upon giving prior written notice to Contractor, cause any representative, consultant or agent designated by Purchaser to conduct the Acceptance inspection pursuant to this Article 11 in whole or in part; provided, however, that the provisions of Article 7 and Article 8.5 shall apply to any such representative, consultant or agent and representative, consultant or such agent shall comply with Contractor's safety and security regulations. 11.3 Pending Waivers Waivers of or deviations from the Performance Specification applicable to any Deliverable Item subject to Acceptance inspection pursuant to this Article 11 shall be addressed in the same manner as set forth in Article 9.4. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 26 28 11.4 Acceptance Inspection Results Within a reasonable time after completion of Acceptance inspection pursuant to this Article 11 for any Deliverable Item, Purchaser shall notify Contractor in writing of the results of such Acceptance inspection. In the event that such Acceptance inspection demonstrates conformity of such Deliverable Item to the applicable requirements of the Performance Specification, such Deliverable Item shall be deemed accepted by the Purchaser for all purposes hereunder ("Acceptance" with respect to each such Deliverable Item other than a Satellite), and Purchaser's notice shall so state. In the event that such Acceptance inspection discloses any non-conformance of such Deliverable Item to the applicable requirements of the Performance Specification, Purchaser's notice shall detail each such non-conformance (with reference to the applicable requirement of the Performance Specification deemed not met), and Contractor shall correct or repair such non-conformance and resubmit such Deliverable Item for Acceptance inspection in accordance with this Article 11 as to each such corrected or repaired element. 11.5 Acceptance Inspection; Equipment and Facilities Contractor shall make available to Purchaser such equipment and facilities as Purchaser may require to conduct any preshipment inspections. All costs and expenses incurred by Purchaser or its agents to dispatch its personnel for acceptance inspections, including travel and living expenses, shall be borne solely by Purchaser. 11.6 Warranty Obligations In no event shall Contractor be released from any of its warranty obligations applicable to any Deliverable Item as a result of such Deliverable Item having been Accepted as set forth in this Article 11. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 27 29 11.7 Repair or Replace Deliverable Items. The provisions of this Article 11 shall apply to corrected, repaired or replaced Deliverable Items other than Satellites. 11.8 Deliverable Data Purchaser shall, within [CONFIDENTIAL INFORMATION REDACTED] days of delivery by Contractor to the location designated in Article 3.1 of Deliverable Data requiring Purchaser approval pursuant to the Statement of Work, notify Contractor in writing that such Deliverable Data has been accepted in accordance with the Statement of Work ("Acceptance" with respect to each such item of Deliverable Data), or advise Contractor in writing that such Deliverable Data does not comply with the applicable requirements of the Statement of Work, identifying each particular of such non-compliance. Contractor shall promptly correct any non-compliant aspect of such Deliverable Data described in such Notice from Purchaser, and re-submit it to Purchaser for inspection pursuant to this Article 11.7. ARTICLE 12 - DELIVERY, TITLE AND RISK OF LOSS 12.1 Satellites Delivery of the Satellite shall occur upon arrival of the Satellite at the Launch Site, and risk of loss of, and title to, the Satellite shall pass from Contractor to Purchaser, upon Acceptance of such Satellite pursuant to Article 10.1. In the event that Contractor binds insurance coverage under Article 39, then notwithstanding the foregoing sentence, risk of loss or damage to the Satellite shall remain with Contractor for the duration of the in-orbit phase of such insurance coverage and shall pass to Buyer upon the expiration thereof. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 28 30 EXCEPT WITH RESPECT TO WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY CONTRACTOR, UPON AND AFTER LAUNCH OF THE LAUNCH VEHICLE FOR A SATELLITE, CONTRACTOR'S SOLE FINANCIAL RISK, AND THE SOLE AND EXCLUSIVE REMEDIES OF PURCHASER OR ANY PARTY ASSOCIATED WITH PURCHASER, WITH RESPECT TO THE USE OR PERFORMANCE OF SUCH SATELLITE (INCLUDING WITH RESPECT TO ANY ACTUAL OR CLAIMED DEFECT CAUSED OR ALLEGED TO BE CAUSED AT ANY TIME BY CONTRACTOR OR ANY OF ITS SUBCONTRACTORS), SHALL BE AS SET FORTH IN ARTICLES 4.1, [CONFIDENTIAL INFORMATION REDACTED], 15, 19, 20 and 39. IN ALL CASES CONTRACTOR'S LIABILITY SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN ARTICLE 34. WITHOUT PREJUDICE TO PURCHASER'S RIGHTS UNDER ARTICLE [CONFIDENTIAL INFORMATION REDACTED] AND 39, CONTRACTOR MAKES NO WARRANTY AS TO THE PERFORMANCE OF ANY LAUNCH VEHICLE. 12.2 Deliverable Items Other Than Satellites Delivery and risk of loss of, and title to, each Deliverable Item of hardware other than Satellites shall pass from Contractor to Purchaser upon Acceptance of such Deliverable Item pursuant to Article 11.4. Purchaser's rights in Deliverable Data are as set forth in Article 36. ARTICLE 13 - [CONFIDENTIAL INFORMATION REDACTED] ARTICLE 14 - INTENTIONALLY DELETED [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 29 31 ARTICLE 15 - WARRANTY 15.1 Terms and Period of Warranty 15.1.1 Satellites. Contractor warrants that each Satellite Delivered under this Contract shall be free from any defects in design, material or workmanship and shall be manufactured and perform in conformity with the Performance Specification (as may be waived pursuant to Article 9.4) applicable to the Satellite in every respect. Prior to Launch, Contractor shall, at its sole cost and expense, correct any defects in design, material and workmanship in compliance with Article 9. After Launch, Contractor's sole obligation and liability with respect to fulfillment of this warranty is to comply with Articles 4.1, [CONFIDENTIAL INFORMATION REDACTED], 15.2.1 and 39. Contractor makes no warranty regarding the performance of the Satellite from and after the Launch of the Satellite. Nothing in this Article 15.1.1 shall be construed to limit or otherwise affect Contractor's obligations under Articles 19 and 20. 15.1.2 Deliverable Items of Hardware Other Than Satellites. Contractor warrants that each Deliverable Item of hardware other than the Satellite delivered under this Contract shall be manufactured and will perform in conformity with the Performance Specification (as may be waived pursuant to Article 11.3) applicable to such Deliverable Item in every respect and will be free from defects in design, materials and workmanship during the period commencing on the date of Acceptance of such Deliverable Item pursuant to Article 11 and [CONFIDENTIAL INFORMATION REDACTED]. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 30 32 15.1.3 Disclaimer. EXCEPT AND TO THE EXTENT PROVIDED IN ARTICLE 15.1 AND ARTICLE 15.4, CONTRACTOR HAS NOT MADE NOR DOES IT HEREBY MAKE ANY REPRESENTATION OR WARRANTY, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, OPERATION, CONDITION, QUALITY, SUITABILITY OR MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, WITH REGARD TO ANY SATELLITE OR ANY OTHER DELIVERABLE ITEM. 15.2 Repair or Replacement 15.2.1 Satellite Anomalies. Contractor shall investigate any Satellite Anomaly in any Satellite arising during the life of the Satellite, and use reasonable best efforts to correct any such Satellite Anomaly that is correctable by Contractor from Purchaser's SCF using the facilities and equipment available at such site. WITHOUT PREJUDICE TO PURCHASER'S RIGHTS UNDER ARTICLES 19 AND 20, CONTRACTOR SHALL HAVE NO LIABILITY TO PURCHASER OR TO THIRD PARTIES ARISING FROM ANY ADVICE OR ASSISTANCE THAT CONTRACTOR OR ANY SUBCONTRACTOR OR AGENT OF CONTRACTOR MAY PROVIDE IN RESPECT OF A SATELLITE AFTER LAUNCH, REGARDLESS OF CAUSE OR LEGAL THEORY, INCLUDING NEGLIGENCE, EXCEPT WITH RESPECT TO: (1) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY CONTRACTOR, AND (2) [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 31 33 PURCHASER'S RIGHTS AND CONTRACTOR'S DUTIES AND OBLIGATIONS UNDER ARTICLES 4.1, [CONFIDENTIAL INFORMATION REDACTED], 15.2.1 AND 39. IN ALL CASES CONTRACTOR'S LIABILITY SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN ARTICLE 34. 15.2.2 Deliverable Items of Hardware Other Than Satellites. Without prejudice to Purchaser's rights and Contractor's duties and obligations under Articles 4.1, 19 and 20, during the period specified in Article 15.1.2 for any Deliverable Item of hardware other than a Satellite, as Purchaser's sole and exclusive remedy, any defect in such Deliverable Item discovered by Purchaser shall be remedied by Contractor at Contractor's expense by repair or replacement of the defective component (at Contractor's election). For any such Deliverable Item, Contractor shall determine if repair or replacement is required to be performed at Contractor's plant. If required, Purchaser shall ship to Contractor's designated facility any such Deliverable Item. Contractor shall be responsible for the cost of shipment to such facility in accordance with its standard commercial practice (including any taxes and/or duties) of any such Deliverable Item, and the cost of return shipment, in accordance with its standard commercial practice, of any such Deliverable Item once repaired or replaced to Purchaser at the location designated therefor in Article 3.1. Risk of loss for such Deliverable Item shall transfer to Contractor upon delivery of such Deliverable Item to the shipping carrier by Purchaser, and risk of loss shall transfer to Purchaser for any such Deliverable Item once repaired or replaced pursuant to this Article 15.2.2 upon receipt thereof by Purchaser at the [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 32 34 location designated therefor in Article 3.1. When necessary, Contractor shall provide free of charge temporary equipment to be used while a repair is being performed. 15.3 Use Conditions Not Covered by Warranty With respect to Deliverable Items of hardware other than Satellites, the warranty under this Article 15 shall not apply if adjustment, repair, or parts replacement is required as a result, directly or indirectly, of accident, unusual physical or electrical stress beyond the unit's designed tolerances, negligence, misuse, failure of environmental control prescribed in operations and maintenance manuals, repair or alterations by any party other than Contractor or its agents, or by causes other than normal and ordinary use. The warranty provided pursuant to this Article 15 is conditioned upon Contractor being given access, if required, to Deliverable Items delivered at Purchaser's facility in order to effect any repair or replacement thereof. If the defect repaired or remedied by Contractor is not covered by the warranty provided pursuant to this Article 15, Purchaser shall pay Contractor the reasonable cost of such repair or replacement, transportation charges, and [CONFIDENTIAL INFORMATION REDACTED] profit. Such repair costs shall be invoiced to Purchaser pursuant to the provisions of Article 5. 15.4 Warranty for Training and Services Contractor warrants that the training and other services it provides to Purchaser pursuant to this Contract will conform to reasonable industry standards at the time such training or other services are provided. In the event Contractor breaches this warranty, as Purchaser's sole remedy, Contractor shall apply reasonable efforts to correct the deficiencies in the provision of such training and other services where it is practicable to do so. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 33 35 ARTICLE 16 - CHANGES 16.1 Right to Adjustment Purchaser may from time to time, in writing, request a change within the general scope of this Contract to: a) Order work in addition to the work provided for herein; or b) Modify the whole or any part of the work provided for herein. If such change request causes an increase or decrease in the cost, or the time required for completion, of the work to be provided herein, or otherwise affects any other provision of this Contract, an equitable adjustment shall be made in the price, or delivery schedule, or both, and this Contract shall be modified in writing accordingly. Any claim by Contractor for adjustment under this Article 16 shall be deemed waived unless asserted in writing within [CONFIDENTIAL INFORMATION REDACTED] days from the receipt by Contractor of the relevant change order. If the cost of supplies or materials made obsolete or excess as a result of a change is included in Contractor's claim for adjustment, Purchaser shall have the right to prescribe the manner of disposition of such supplies or materials. Nothing in this Article 16 shall excuse Contractor from promptly proceeding with the Contract as changed. 16.2 Cost Adjustments If Contractor or Purchaser claims a right to adjustment pursuant to Article 16.1 above, Contractor shall prepare and furnish to Purchaser the evidence reasonably necessary to establish the amount of any increase or decrease in the cost of, or the time required for, the performance of this Contract caused by the relevant change order. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 34 36 Subject to Article 16.3 below, the amount of any such cost increase or decrease will be calculated in accordance with Contractor's regularly established accounting practices and include [CONFIDENTIAL INFORMATION REDACTED]. If requested by Purchaser, the amount of a particular claim shall be verified, at Contractor's and Purchaser's expense to be shared equally, by the independent certified public accounting firm normally used by Contractor. 16.3 Equitable Adjustment The Parties shall attempt to reach agreement as to any equitable adjustment that is appropriate pursuant to Article 16.1 above. Without relieving Contractor of the obligation to proceed promptly with the Contract as changed, in the event that the Parties are unable to reach agreement as to an equitable adjustment within a reasonable period of time, the matter shall be determined in accordance with Article 25. During the pendency of such proceedings, Contractor shall proceed with the work required under this Contract as changed and Purchaser shall pay Contractor all amounts not in dispute. ARTICLE 17 - FORCE MAJEURE 17.1 Contractor and Purchaser shall not be responsible for late Delivery, delay of the final completion date or nonperformance of its contractual obligations due to Force Majeure. Force Majeure shall be any event beyond the reasonable control of a Party or its suppliers and subcontractors and shall include, but not be limited to: (1) acts of God; (2) acts of a public enemy; (3) acts of a government in its sovereign capacity (including any action or inaction affecting the import or export of items); (4) war and warlike events; (5) catastrophic weather [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 35 37 conditions such as hurricanes, tornadoes and typhoons; (6) fire, earthquakes, floods, epidemics, quarantine restrictions, strikes, lockouts and other industrial disputes, sabotage, riot and embargoes; (7) non-availability of a Launch Vehicle or Launch Site for any reason beyond a Party's reasonable control; and (8) other unforeseen and extraordinary events, which in every case are beyond the reasonable control and without fault or negligence of a Party or its suppliers and subcontractors ("Force Majeure"). Upon the occurrence of Force Majeure, an equitable adjustment shall be negotiated in the schedule and other portions of this Contract affected by Force Majeure. The Party affected by a Force Majeure event shall provide reasonable notice to the other Party of a Force Majeure event. In the event that a Force Majeure event (other than the non-availability of a Launch Vehicle or Launch Site) occurs that extends for [CONFIDENTIAL INFORMATION REDACTED] or more days or that the Parties reasonably believe will extend for [CONFIDENTIAL INFORMATION REDACTED] or more days, either Party shall have the right to terminate this Contract upon delivery of written notice to the other Party. In the event of a termination pursuant to the immediately preceding sentence, Contractor shall refund all payments made by Purchaser for Deliverable Items not previously Accepted by Purchaser, except with respect to items referred to in Article 17.2, and Purchaser shall have no further obligation to make any further payments of the Firm Fixed Price to Contractor hereunder. Such refund shall be made no later than [CONFIDENTIAL INFORMATION REDACTED] days after Contractor's receipt of Purchaser's written notice requesting such refund. 17.2 In the event of termination pursuant to Article 17.1, upon Purchaser's request, Contractor shall deliver to Purchaser all partially completed items or services and work-in-process. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 36 38 In the event of termination pursuant to Article 17.1, Contractor shall not be required to refund any amounts, and Purchaser shall remain liable for payment of all amounts, with respect to Deliverable Items for which Acceptance has occurred pursuant to the terms of Article 10 or Article 11, or that are retained by Purchaser whether or not completed, as follows: (i) at the price set forth in this Contract for such items for which an itemized price is set forth herein and (ii) at the reasonable out-of-pocket cost incurred by Contractor for (a) such items for which no itemized price is set forth herein and (b) partially completed items or services and work-in-progress. ARTICLE 18 - PURCHASER DELAY OF WORK Except in the case of a Force Majeure event, if the performance of all or any part of the work required of Contractor under this Contract is delayed or interrupted by Purchaser's failure to perform its contractual obligations within the time specified in this Contract or within a reasonable time if no time is specified, or an act by Purchaser that unreasonably interferes with Contractor's performance of its obligations under this Contract, Contractor shall give written notice to Purchaser of the failure or act causing such delay or interruption. If Purchaser does not promptly cease such act or correct such failure, this Contract shall be equitably adjusted in the price, performance requirements, Delivery schedule, and any other terms of this Contract affected by such act or failure to act of Purchaser. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 37 39 ARTICLE 19 - PATENT INDEMNITY 19.1 Indemnification Purchaser agrees that Contractor has the right to defend and, at Contractor's sole option to settle, and Contractor, at its own expense, hereby agrees to defend or, at Contractor's sole option to settle, and to indemnify and hold harmless Purchaser, and its Affiliates, and their respective officers, directors, employees, shareholders, agents and representatives from and against any and all claims, actions, suits or proceedings based on an allegation that the design or manufacture of any Deliverable Item or part thereof or the normal intended use, lease, sale or other disposition of any Deliverable Item or part thereof infringes any patent or other intellectual property right ("Intellectual Property Claim"), and shall pay any royalties and other liabilities adjudicated to be owing to the claimant (or, in Contractor's sole discretion, provided in settlement of the matter) as well as costs incurred in defending (including court costs and reasonable attorneys' fees) such Intellectual Property Claim; provided that Purchaser promptly notifies Contractor in writing of any such Intellectual Property Claim and gives Contractor the authority and all such assistance and information as may be requested from time to time by Contractor for the defense of such Intellectual Property Claim. Any such assistance or information which is furnished by Purchaser at the request of Contractor shall be at Contractor's expense. In any proceeding relating to an Intellectual Property Claim, any person or entity entitled to indemnification hereunder (an "Indemnified Party") shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, Contractor shall pay the fees and expenses of counsel retained by an Indemnified Party in the event that: (i) Contractor and such Indemnified Party shall have mutually [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 38 40 agreed to retention of such other counsel; or (ii) the named parties to any proceeding (including without limitation any impleaded parties) include both Contractor and such Indemnified Party and representation of both Contractor and such Indemnified Party by the same counsel would be inappropriate due to actual or potential conflict of interest between them. 19.2 Infringing Equipment If the design or manufacture of any Deliverable Item or the normal intended use, lease, sale or other disposition of any Deliverable Item under this Contract is enjoined as a result of an Intellectual Property Claim or is otherwise prohibited, Contractor shall (i) resolve the matter so that the injunction or prohibition no longer pertains, (ii) procure for Purchaser the right to use the infringing item or (iii) modify the infringing item so that it becomes non-infringing while remaining in compliance with the Performance Specification (as may be waived pursuant to Article 9.4) in all respects. If Contractor is unable to accomplish (i), (ii) or (iii) as stated above, Purchaser shall have right to terminate this Contract with respect to such Deliverable Item, return such Deliverable Item to Contractor (in space, with respect to an in-orbit Satellite), and receive [CONFIDENTIAL INFORMATION REDACTED]. 19.3 Combinations and Modifications Contractor shall have no liability under this Article 19 for any Intellectual Property Claim arising solely from (i) use of any Deliverable Item in combination with other items, unless Contractor sold them as a combination intended to be so used or (ii) modifications of Deliverable Items after Acceptance, unless Contractor or one of its subcontractors (with the knowledge and consent of Contractor) made or specifically recommended such modifications. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 39 41 19.4 Sole Remedies Except in the case of willful misconduct or Gross Negligence by Contractor, the remedies set forth in this Article 19 are Purchaser's sole and exclusive remedies for or related to any Intellectual Property Claim, and Contractor's liability under this Article 19 for any Intellectual Property Claim with respect to a Deliverable Item shall in no event exceed [CONFIDENTIAL INFORMATION REDACTED]. In all cases Contractor's liability shall be subject to the limitation of liability set forth in Article 34. ARTICLE 20 - INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE 20.1 Contractor's Indemnification of Purchaser Contractor shall defend, indemnify and hold harmless Purchaser, and its Affiliates, and their respective directors, officers, employees, shareholders, agents and representatives from and against all losses, damages, liabilities, suits and expenses (including, but not limited to, reasonable attorneys' fees) (collectively "Losses") attributable to third party claims for bodily injury or property damage, but only if such Losses were caused by, or resulted from, negligent acts or omissions, Gross Misconduct or willful misconduct by Contractor or its employees, agents, consultants or representatives. For the avoidance of doubt, and except for Losses resulting from the Gross Negligence or willful misconduct of Contractor, Contractor shall have no indemnity obligation under this Article 20.1 for any Losses with respect to the operation or use of a Satellite after Launch, even if such Losses are attributable to an act or omission of Contractor or its employees prior to Launch. In all cases Contractor's liability shall be subject to the limitation of liability set forth in Article 34. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 40 42 20.2 Purchaser's Indemnification of Contractor Purchaser shall defend, indemnify and hold harmless Contractor, and its Affiliates, and their respective directors, officers, employees, shareholders, agents and representatives from and against all Losses attributable to third party claims for bodily injury or property damage, but only if such Losses were caused by, or resulted from, negligent acts or omissions, Gross Negligence or willful misconduct by Purchaser or its employees, agents, consultants or representatives. 20.3 Conditions to Indemnification The right to any indemnity specified in Article 20.1 or 20.2 shall be subject to the following conditions: a. The Party seeking indemnification shall promptly advise the other Party in writing of the filing of any suit or of any written or oral claim for indemnification upon receipt thereof and shall provide the other Party, at its request, with such assistance and information available to the indemnified party as is relevant to the defense of such suit or claim. Any such assistance or information which is furnished by the indemnified Party at the request of the indemnifying Party shall be at the indemnifying Party's expense. b. The Party seeking indemnification shall not make any admission nor shall it reach a compromise or settlement without the prior written approval of the other Party, which approval shall not be unreasonably withheld or delayed. c. The indemnifying Party shall assist and shall have the right to assume, when not contrary to the governing rules of procedure, the defense of any claim or suit in settlement thereof and shall satisfy any judgments rendered by a court of competent jurisdiction in such suits and shall make all settlement payments. d. The Party seeking indemnification may participate in any defense at its own expense, using counsel reasonably acceptable to the indemnifying Party, provided there is no conflict of interest and that such participation would not adversely affect the conduct of the proceedings. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 41 43 e. Notwithstanding the foregoing, the indemnifying party shall pay the fees and expenses of counsel retained by an indemnified party in the event that: (i) the indemnifying party and such indemnified party shall have mutually agreed to retention of such other counsel; or (ii) the named parties to any proceeding (including without limitation any impleaded parties) include both the indemnifying party and such indemnified party and representation of both the indemnifying party and such indemnified party by the same counsel would be inappropriate due to actual or potential conflicts of interest between them. ARTICLE 21 - TERMINATION FOR CONVENIENCE 21.1 Reimbursement of Contractor Purchaser may terminate this Contract without cause, in whole or in part, by giving Contractor written notice [CONFIDENTIAL INFORMATION REDACTED] days prior to the date of such termination. In the event of such termination, Contractor will immediately cease work as directed in the termination notice and it is agreed that the termination charges shall be negotiated. In no event shall the termination charges pursuant to this Article 21.1 exceed [CONFIDENTIAL INFORMATION REDACTED] In no event will the aggregate of the amounts previously paid by Purchaser under this Contract and the amounts to be paid by Purchaser under this Article 21.1 [CONFIDENTIAL INFORMATION REDACTED]. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 42 44 21.2 Partial Termination If the termination by Purchaser is partial, the price for the non-terminated portion of this Contract shall be increased by [CONFIDENTIAL INFORMATION REDACTED] equal to [CONFIDENTIAL INFORMATION REDACTED]; however, in no event will the aggregate of the amounts previously paid by Purchaser under this Contract and the amounts to be paid by Purchaser for the non-terminated portion of this Contract, as increased under this Article 21.2, [CONFIDENTIAL INFORMATION REDACTED]. 21.3 Title Transfer In the event of a termination pursuant to this Article 21, a termination settlement meeting shall be held at a mutually agreed time and place no later than [CONFIDENTIAL INFORMATION REDACTED] days after submission of a claim by Contractor pursuant to Article 21.1. At or prior to the date of such termination settlement meeting, Contractor shall provide Purchaser with such documentation of the costs set forth in Articles 21.1 and 21.2 as Purchaser may reasonably request. Upon mutual agreement of the termination settlement, Contractor may submit an invoice to Purchaser for payment in accordance with the terms of Article 5.2. Upon mutual agreement of the termination settlement, subject to applicable U.S. Government export laws, Contractor shall, at Contractor's or subcontractor's plant, transfer title and risk of loss to Purchaser of all Deliverable Items referred to in Article 21.1(a), and all other partially completed or incomplete Deliverable Items for which Contractor is entitled to payment under this Article 21 at the time of the termination settlement. Purchaser may direct Contractor to undertake to reallocate to other uses, and/or to otherwise assist Purchaser in disposing/selling, items subject to termination under this Article 21 for the purpose of receiving a price refund or offset against Contractor's termination claim. Upon receipt of such direction, Contractor shall, on a reasonable efforts basis, attempt to reallocate, and/or to otherwise assist Purchaser in disposing/selling, the items and provide a refund (in cases where the [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 43 45 amounts generated are greater than Contractor's termination claim) to Purchaser or an offset (in cases where the amounts generated are less than or equal to Contractor's termination claim) against Contractor's termination claim, less any reasonable selling expenses. 21.4 Minimize Termination Costs In the event of termination pursuant to this Article 21, Contractor shall take all actions necessary to reduce the termination costs due from Purchaser, including but not limited to, the immediate discontinuance of the terminated work under this Contract and the placing of no further orders for labor, materials or services required under the terminated portion of the Contract. Contractor agrees to take such action as may be necessary or as Purchaser may direct for protection of property in Contractor's possession in which Purchaser may have acquired an interest. 21.5 Continued Efforts Contractor shall continue performance of the portion of this Contract not terminated. Purchaser shall have no obligations to Contractor with respect to the terminated portion of this Contract except as set forth in this Article 21. 21.6 Settlements Contractor agrees to advise Purchaser in writing of all proposed settlements with vendors in excess of [CONFIDENTIAL INFORMATION REDACTED] in the event of termination under this Article 21, and Contractor further agrees not to enter into any binding settlements until Purchaser has approved the proposed settlement or [CONFIDENTIAL INFORMATION REDACTED] days have elapsed from the date Purchaser was first notified of such proposed settlement. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 44 46 21.7 Measurement of Costs Costs shall be determined in accordance with generally accepted accounting principals and verified by an independent certified accounting firm of national reputation mutually acceptable to Purchaser and Contractor with costs therefor shared equally by both Parties. ARTICLE 22 - [CONFIDENTIAL INFORMATION REDACTED] ARTICLE 22A - [CONFIDENTIAL INFORMATION REDACTED] ARTICLE 23 - DEFAULT 23.1 Failure to Perform by Contractor Subject to Article 23.4 below, if (i) Contractor fails to Deliver a Satellite within the time specified for Delivery thereof plus the maximum number of days for late delivery liquidated damages specified in Article [CONFIDENTIAL INFORMATION REDACTED] ; (ii) Acceptance of any other Deliverable Item does not occur within the time specified for delivery thereof in this Contract (or, in either case, such longer time as may be agreed to in writing by Purchaser), or (iii) Contractor fails to prosecute the work hereunder or to perform any other material provision of this Contract, thereby endangering performance of this Contract within the time period set forth in Subsection (i) above, and in each case Contractor does not cure such failure within [CONFIDENTIAL INFORMATION REDACTED] days (or such longer period as may be agreed to in writing by Purchaser) after receipt from Purchaser of written notice of such failure, Purchaser may terminate this Contract in whole or in part by written notice to Contractor. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 45 47 23.2 Termination Liability In the event of a termination for default pursuant to Article 23.1, Contractor shall [CONFIDENTIAL INFORMATION REDACTED]. In all cases Contractor's liability shall be subject to the limitation of liability set forth in Article 34. 23.3 Partially Completed Items and Work In Process; Contractor's Reimbursement for Terminated Work In the event of termination pursuant to Article 23.1, upon Purchaser's request, Contractor shall deliver to Purchaser all partially completed items or services and work-in-process. In the event of termination pursuant to Article 23.1, Contractor shall not be required to refund any amounts, and Purchaser shall remain liable for payment of all amounts, with respect to Deliverable Items for which Acceptance has occurred pursuant to the terms of Article 10 or Article 11, or that are retained by Purchaser whether or not completed, as follows: (i) at the price set forth in this Contract for such items for which an itemized price is set forth herein and (ii) [CONFIDENTIAL INFORMATION REDACTED] for (a) such items for which no itemized price is set forth herein and (b) partially completed items or services and work-in-progress. 23.4 Invalid Default Termination If, after termination pursuant to Article 23.1, it is finally determined by arbitration, legal proceeding or mutual agreement that Contractor was not in default, or that the default was excusable, the rights and obligations of the Parties shall be the same as if the termination had occurred under Article 21; except that, Contractor shall also be entitled to recover [CONFIDENTIAL INFORMATION REDACTED]. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 46 48 23.5 Contractor Termination Contractor may terminate this Contract upon Purchaser's failure to comply with any material provision of this Contract by giving written notice to Purchaser of its intention to so terminate. Such notice shall set forth the provision or provisions with which Purchaser has failed to comply and a reasonably detailed description of such failure. Such termination shall become effective upon Purchaser's failure to correct such nonperformance within [CONFIDENTIAL INFORMATION REDACTED] days (or such longer period as may be agreed to in writing by Contractor) after receipt of such notice from Contractor. In the event of termination pursuant to this Article 23.5, Contractor shall be paid as if the termination were for convenience pursuant to Article 21. Further, and without limiting Contractor's other rights or remedies, Contractor may immediately take over all or part of the Deliverable Items and Contract work-in-process and use them in any manner Contractor may elect. In such case, the fair market value of any Deliverable Items or Contract work-in-progress retained by Contractor shall be off-set against Purchaser's termination liability. If, after termination pursuant to this Article 23.5, it is finally determined by arbitration pursuant to Article 25 that Purchaser did not fail in the performance of its obligations under this Contract, Contractor shall be liable to Purchaser for its reasonable direct damages resulting from such termination of this Contract (in no event exceeding amounts payable to Purchaser pursuant to Articles 23.2 and 23.3, except in the case of Gross Negligence or willful misconduct, and in all cases subject to the limitation of liability set forth in Article 34). [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 47 49 ARTICLE 24 - INTENTIONALLY DELETED ARTICLE 25 - ARBITRATION 25.1 Arbitration Any dispute (except as set forth in Article 25.2) arising between the Parties with respect to the performance of obligations under, or interpretation of, this Contract that cannot be settled by negotiation between the Parties within [CONFIDENTIAL INFORMATION REDACTED] days of written notice from one Party to the other stating such first Party's intent to resort to arbitration ("Notice of Arbitration"), shall be determined by submission to binding arbitration in accordance with the provisions of the "Uniform Arbitration Act of 1975", part 2 of article 22 of title 13, Colorado Revised Statutes, as amended from time to time, and not by a lawsuit or resort to court process except as Colorado law provides for judicial review of arbitration proceedings. Any such arbitration shall be conducted in the City and County of Denver, Colorado by a panel of three arbitrators who shall be selected within [CONFIDENTIAL INFORMATION REDACTED] days of such Notice of Arbitration, as follows: (i) one arbitrator shall selected by each Party; and (ii) the third arbitrator shall be selected by the arbitrators chosen by the Parties. In resolving any dispute, the arbitrators shall apply the substantive laws of the State of New York (without regard to its conflict of law rules), but shall apply the Colorado Rules of Civil Procedure and the Colorado Rules of Evidence, and shall take into account usages, customs and practices in the performance of contracts for the purchase and sale of commercial communications satellites. Proceedings and documents provided and generated in connection with any arbitration hereunder shall be in the English language. Each Party shall bear its own costs and expenses (including the costs and expenses of the arbitrator it selected) and one-half of the costs and expenses of the third arbitrator, unless otherwise determined in the arbitral award. The Parties agree that, in no event, shall the arbitrators' decision include a recovery under any [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 48 50 theory of liability, or award in any amount, not expressly allowed under this Contract. In furtherance and without limitation of the foregoing, any award made by the arbitrators shall be within the limitations set forth in Article 34. 25.2 Gross Negligence or Willful Misconduct If a dispute arises as to whether or not a Party has committed or acted with Gross Negligence or willful misconduct, that issue alone shall be resolved by a federal or state court in New York without a jury, and the court shall resolve such issue by applying the laws of the State of New York without regard to its conflict of law rules. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO A JURY IN CONNECTION WITH SUCH DISPUTE. ARTICLE 26 - INTER-PARTY WAIVER OF LIABILITY FOR A LAUNCH 26.1 Launch Services Agreement Inter-Party Waiver of Liability The Parties hereby agree to be bound by the no-fault, no-subrogation inter-party waiver of liability and related indemnity provisions provided in the Launch Services Agreement with respect to the Launch of the Satellite and to use reasonable commercial efforts to cause their respective contractors and subcontractors at any tier (including suppliers of any kind) that are involved in the performance of this Contract and any other person having an interest in the Satellite or any Transponder thereon (including customers of Purchaser), as required by the Launch Services Agreement and as specified by Buyer, to accede to such waiver. The Parties shall execute and deliver any instrument that may be required by the Launch Agency to evidence their agreement to be bound by such waiver. Purchaser and Contractor also shall use reasonable commercial efforts to obtain, from their insurers, and shall use reasonable commercial efforts to [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 49 51 cause their respective contractors and subcontractors at any tier (including suppliers of any kind) that are involved in the performance of this Contract and any other person having an interest in any Satellite or any Transponder thereon (including customers of Purchaser) to obtain from their insurers, as required by the Launches Services Agreement and as specified by Buyer, an express waiver of such insurers' rights of subrogation, subject to terms and conditions as are then customarily available regarding such waivers, with respect to any and all claims that have been waived pursuant to this Article 26. 26.2 Indemnity Related to the Inter-Party Waiver of Liability Each Party shall indemnify against and hold the other Party harmless from any claim against the other Party, its contractors and subcontractors at any tier (including suppliers of any kind) that are involved in the performance of this Contract, made by the Launch Agency or any of its contractors and subcontractors (including suppliers of any kind) that are involved in the performance of the Launch Services Agreement, resulting from the failure of the first Party to waive any liability against, or to use reasonable commercial efforts to cause any other person such Party is obligated to use reasonable commercial efforts to cause to waive any liability against, the Launch Agency or its contractors and subcontractors at any tier (including suppliers of any kind). 26.3 Survival of Obligations The indemnification and hold harmless obligations provided in this Article 26 shall survive and remain in full force and effect, notwithstanding the expiration or termination of this Contract. 26.4 [CONFIDENTIAL INFORMATION REDACTED] [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 50 52 ARTICLE 27 - CORRECTIVE MEASURES 27.1 Unlaunched Satellites If the performance data from any launched satellite manufactured by Contractor shows that such launched satellite will not or may not meet the performance specifications for such launched satellite at any time during its mission, then Contractor shall, at its sole cost and expense, if applicable, take appropriate corrective measures in the Satellite before it is Launched so as to eliminate therefrom the deficiencies noted in the launched satellite. ARTICLE 28 - RESERVED ARTICLE 29 - [CONFIDENTIAL INFORMATION REDACTED] ARTICLE 30 - MOST FAVORED NATION 30. If a total loss or destruction occurs with respect to a Satellite at any time during the period of [CONFIDENTIAL INFORMATION REDACTED] after Launch and Purchaser desires to obtain a new DBS satellite from Contractor, Contractor hereby guarantees that the price of such new satellite, [CONFIDENTIAL INFORMATION REDACTED]. ARTICLE 31 - RESERVED ARTICLE 32 - RESERVED [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 51 53 ARTICLE 33 - GROUND STORAGE 33.1 Notification Purchaser may direct Contractor to store the Satellite after completion of SPSR. 33.2 Storage Location Ground Storage shall be performed at a Contractor controlled facility and shall be conducted in accordance with the satellite storage plan section(s) of the Statement of Work. 33.3 Storage Prices There shall be no charge for storage and reverification work if the Contractor's failure to perform is the reason the Satellite is stored, or if the Satellite is stored for less than six months. The firm fixed price for Ground Storage of the Satellite in all other circumstances shall be [CONFIDENTIAL INFORMATION REDACTED] per month storage cost while the Satellite is in Ground Storage. In addition, Purchaser shall also pay directly or reimburse Contractor for [CONFIDENTIAL INFORMATION REDACTED]. 33.4 Payments Payments shall be made on the thirtieth day of each month for the prior month's storage, provided an invoice is received at least thirty days prior to the payment date. 33.5 Title and Risk of Loss Title and risk of loss to a Satellite delivered for Ground Storage shall remain with Contractor at the storage site. Contractor shall assume full responsibility for any loss or damage to the Satellite during Ground Storage. 52 54 33.6 Notification of Intention to Launch a Previously Stored Satellite Purchaser shall notify Contractor in writing that a Satellite in Ground Storage should be removed from Ground Storage and delivered to the Launch Site. This notification must be received by Contractor not less than [CONFIDENTIAL INFORMATION REDACTED] months prior to the scheduled date for Delivery to the Launch Site of the Satellite. Failure to notify Contractor in a timely manner will result in an adjustment to the Delivery schedule for such Satellite. ARTICLE 34 - LIMITATION OF LIABILITY NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER PARTY OR ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS AT ANY TIER (INCLUDING SUPPLIERS OF ANY KIND), AGENTS OR CUSTOMERS, TO ITS PERMITTED ASSIGNEES OR SUCCESSOR OWNERS OF ANY SATELLITE OR OTHER DELIVERABLE ITEM OR TO ANY OTHER PERSON CLAIMING BY OR THROUGH SUCH PARTY FOR ANY AMOUNTS REPRESENTING [CONFIDENTIAL INFORMATION REDACTED], ARISING FROM OR RELATING TO THE PERFORMANCE OR NONPERFORMANCE OF THIS CONTRACT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMS DELIVERED OR SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT, STATUTE OR OTHER LEGAL OR EQUITABLE THEORY, EXCEPT THAT IN THE EVENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY CONTRACTOR OR PURCHASER SUCH PARTY MAY BE LIABLE AND RESPONSIBLE FOR AMOUNTS REPRESENTING [CONFIDENTIAL INFORMATION REDACTED]. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 53 55 IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT EXCEED THE FIRM FIXED PRICE (PROVIDED REFUNDS UNDER ARTICLE 23.2 AND PAYMENTS FOR LOSSES UNDER ARTICLE 39 WILL NOT COUNT AGAINST THIS FIGURE), EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY A PARTY, IN WHICH CASE THE TOTAL LIABILITY OF A PARTY MAY NOT EXCEED THE FIRM FIXED PRICE PLUS [CONFIDENTIAL INFORMATION REDACTED]. ARTICLE 35 - DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION 35.1 Definition of Proprietary Information For the purpose of this Contract, "Proprietary Information" means all information (other than Deliverable Data, which is subject to the provisions of Article 36), in whatever form transmitted, that is disclosed by such Party (hereinafter referred to as the "disclosing party") to the other Party hereto (hereinafter referred to as the "receiving party") relating to the performance by the disclosing party of this Contract and: (i) is identified as proprietary by means of a written legend thereon, or (ii) if disclosed orally, is identified as proprietary at the time of initial disclosure. Proprietary Information shall not include any information disclosed by a Party that (i) is already known to the receiving party at the time of its disclosure, as evidenced by written records of the receiving party, without an obligation of confidentiality at the time of disclosure; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is independently developed by the receiving party as evidenced by written records of the receiving party; (iv) such Party is legally compelled to disclose; or (v) is obtained from a third party without restriction and without breach of this Contract. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 54 56 35.2 Terms for Handling and Use of Proprietary Information For a period of [CONFIDENTIAL INFORMATION REDACTED] years after receipt of any Proprietary Information (or until such time as such Proprietary Information becomes publicly known as provided in Article 35.1), the receiving party shall not disclose Proprietary Information that it obtains from the disclosing party to any person or entity except its employees and agents who have a need to know in order to perform under this Contract and who have been informed of and have agreed to abide by the receiving party's obligations under this Article 35. The receiving party shall use not less than the same degree of care to avoid disclosure of such Proprietary Information as it uses for its own Proprietary Information of like importance; but in no event less than a reasonable degree of care. Proprietary Information shall be used only for the purpose of performing the obligations under this Contract, or as the disclosing party otherwise authorizes in writing. IN NO EVENT SHALL EITHER PARTY DISCLOSE OR TRANSFER TECHNICAL INFORMATION OR PROVIDE TECHNICAL SERVICES TO INSURANCE BROKERS, UNDERWRITERS OR OTHER THIRD PERSONS OR ENTITIES WITHOUT THE OTHER PARTY'S PRIOR WRITTEN APPROVAL (WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED) AND, WHERE REQUIRED, PRIOR APPROVAL OF THE U.S. DEPARTMENT OF STATE. 35.3 Legally Required Disclosures Notwithstanding the foregoing, in the event that the receiving party becomes legally compelled to disclose Proprietary Information of the disclosing party, including this Contract or other supporting document(s), the receiving party shall, to the extent practicable under the circumstances, provide the disclosing party with written notice thereof so that the disclosing party may seek a protective order or other appropriate remedy, or to allow the disclosing party to redact [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 55 57 such portions of the Proprietary Information as the disclosing party deems appropriate. In any such event, the receiving party will disclose only such information as is legally required, and will cooperate with the disclosing party (at the disclosing party's expense) to obtain confidential and proprietary treatment for any Proprietary Information being disclosed. 35.4 Title; Return All Proprietary Information disclosed under this Contract in tangible form (including without limitation information incorporated in computer software or held in electronic storage means) shall be and remain the property of the disclosing party. All notes, memoranda or other materials created or fabricated by the receiving party, including without limitation evaluations, based upon Proprietary information or prepared by the receiving party which include Proprietary Information shall be considered Proprietary Information for all purposes under this Contract. Upon request of the disclosing party, all such Proprietary Information shall be returned to the disclosing party or shall be destroyed by the receiving party and shall not thereafter be retained in any form by the receiving party. Upon request of the disclosing party, the receiving party shall certify in writing that such party has either returned or destroyed all Proprietary Information previously received from the disclosing party. The rights and obligations of the Parties under this Article 35 shall survive any such return or destruction of Proprietary Information. 35.5 Specific Performance The Parties acknowledge and agree that the unauthorized use or disclosure by the receiving party of any Proprietary Information disclosed by the disclosing party would result in irreparable injury to [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 56 58 the disclosing party. The Parties agree that that the disclosing party shall, in addition to and not in lieu of any other available legal or equitable remedies or damages, be entitled to a temporary injunction to restrain threatened or actual breaches of the terms of this Article 35 by the receiving party, its agents, employees, representatives and all other persons acting for any of the above-mentioned persons or entities. 35.6 Disclosure of Contract Terms Notwithstanding anything to the contrary in this Article 35, and subject to applicable export restrictions, the terms and conditions of this Contract may not be disclosed by either Party to any person except with the prior written consent of the other Party, provided, in each case, that the recipient of such information agrees to treat such information as confidential and executes and delivers a confidentiality agreement reasonably acceptable to both Parties or is otherwise subject to confidentiality obligations reasonably satisfactory to both Parties; provided, further, that either Party shall have the right to disclose such information as is required under applicable law or the binding order of a court or government agency; and provided further that Purchaser shall have the right to disclose any or all of the terms and conditions of this Contract to its insurance brokers and underwriters as Purchaser deems necessary in its sole judgment. ARTICLE 36 - INTELLECTUAL PROPERTY RIGHTS - RIGHTS IN DATA 36.1 Intellectual Property Rights (a) Contractor hereby grants to Purchaser a fully-paid up, royalty free, irrevocable, and non-exclusive license to practice and have practiced throughout the world exclusively for the purpose of (i) [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 57 59 operating, maintaining or using the Deliverable Items, or (ii) developing, operating, maintaining or using ground equipment with such Deliverable Items any inventions (including without limitation software), whether patented or unpatented or otherwise subject to intellectual property protections, now or hereafter owned by Contractor, or to which Contractor has or may acquire rights, which inventions are incorporated in any Deliverable Item or required in order to practice or have practiced any invention incorporated in any Deliverable Item. 36.2 Rights in Data Contractor shall retain title to all Deliverable Data utilized or developed by Contractor during the performance of this Contract. Subject to U.S. export regulations and applicable export restrictions, Purchaser's officers, directors, employees, consultants and representatives shall have the non-exclusive right to obtain and use the Deliverable Data for any and all purposes related to the testing, operation, use and maintenance of the Satellite. Purchaser's officers, directors, employees, consultants and representatives shall not disclose Deliverable Data to other companies, organizations or persons without the express prior written consent of Contractor, which consent shall not be unreasonably withheld or delayed. Purchaser shall have no rights in Deliverable Data other than as expressly stated in this Contract, and title to Deliverable Data shall not pass to Purchaser or any other entity pursuant to the terms hereof. 36.3 No Additional Obligation Nothing contained in this Article shall require Contractor to provide any data other than as set forth in the Statement of Work. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 58 60 ARTICLE 37 - PUBLIC RELEASE OF INFORMATION Either Party intending to disclose publicly whether through the issuance of news releases, articles, brochures, advertisements, prepared speeches or other information releases concerning this Contract or the transactions contemplated herein shall obtain the prior written approval of the other Party with respect to the content and timing of such issuance. A Party's approval under this Article 37 shall not be unreasonably delayed or denied. Notwithstanding the above, either Party may release information described herein as required by securities laws or other applicable laws. ARTICLE 38 - NOTICES 38.1 Written Notification Each notice or correspondence required or permitted to be given hereunder shall be given in writing (except where oral notice is specifically authorized) to the respective addresses or facsimile numbers and to the attention of the individuals set forth below by post, facsimile transmission, overnight courier or first class registered or certified mail, return receipt requested, postage prepaid. The sending of such notice with confirmation of successful receipt of the complete transmission (in the case of facsimile transmissions) or receipt of such notice (in the case of delivery by first class registered or certified mail or by overnight courier service) shall constitute the giving thereof. In the case of Purchaser: [CONFIDENTIAL INFORMATION REDACTED] [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 59 61 With a separately delivered copy to: [CONFIDENTIAL INFORMATION REDACTED] In the case of Contractor: [CONFIDENTIAL INFORMATION REDACTED] 38.2 Change of Address Either Party may from time to time change its notice address or the persons to be notified by giving the other Party written notice (as provided above) of such new information and the date upon which such change shall become effective. ARTICLE 39 - [CONFIDENTIAL INFORMATION REDACTED] ARTICLE 40 - ORDER OF PRECEDENCE In the event of conflict among the terms of the Preamble and Articles 1 to 46 of this Contract and the Exhibits, the following order of decreasing precedence shall apply: o This Contract (Preamble and Articles 1 through 46 and Attachment A and B) o Exhibit A Statement of Work o Exhibit B Performance Specification o Exhibit C Product Assurance Program Plan o Exhibit D Test Plan [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 60 62 ARTICLE 41 - GENERAL 41.1 Binding Effect; Assignment This Contract shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Except as otherwise expressly set forth to the contrary herein, this Contract may not be assigned, either in whole or in part, by either Party without the express written approval of the other Party. Such approval shall not be unreasonably withheld or delayed. Contractor may require, as a condition of approving an assignment by Purchaser, that the proposed assignee establish irrevocable letters of credit, guarantees or other comparable assurances satisfactory to Contractor prior to such assignment becoming effective and that Purchaser remain primarily or secondarily liable hereunder. Either Party, upon prior written notice to the other Party, may grant security interests in its rights hereunder to lenders that provide financing for the performance by such Party of its obligations under this Contract or for the subject matter hereof. In the event that either Party is sold to or merged into another entity that shall be deemed an assignment requiring the other Party's approval hereunder. Notwithstanding anything to the contrary herein, Purchaser may assign this Contract, in whole or in part without Contractor's approval and without regard to the conditions set forth in the fourth sentence of this Article 41.1, to a person or entity that directly or indirectly controls, is controlled by or is under common control with Purchaser. 41.2 Severability If any provision of this Contract is declared or found to be illegal, unenforceable or void, the Parties shall negotiate in good faith to agree upon a substitute provision that is legal and enforceable and is as nearly as possible consistent with the intentions underlying the original [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 61 63 provision. If the remainder of this Contract is not materially affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law. 41.3 Captions The captions contained herein are for purposes of convenience only and shall not affect the construction of this Contract. 41.4 Relationships of the Parties It is expressly understood that Contractor and Purchaser intend by this Contract to establish the relationship of independent contractors only, and do not intend to undertake the relationship of principal and agent or to create a joint venture or partnership or any other relationship, other than that of independent contractors, between them or their respective successors in interests. Neither Contractor nor Purchaser shall have any authority to create or assume, in the name or on behalf of the other Party, any obligation, expressed or implied, or to act or purport to act as the agent or the legally empowered representative of the other Party, for any purpose whatsoever. 41.5 Entire Agreement The existing Contract between EchoStar Orbital Corporation and Space Systems/Loral, Inc. dated February 4, 2000, regarding the EchoStar 8 Satellite Program (110 degrees W.L.), is hereby amended, restated and superceded in its entirety by this Contract effective as of February 1, 2001, and the Parties hereby agree that, this Contract, including all Exhibits and the Attachments hereto, represents the entire understanding and agreement between the Parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations and agreements with respect to the subject matter hereof. This Contract may not be modified or amended, and the Parties' rights and obligations may not be waived, except by the written agreement of both Parties. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 62 64 41.6 Standard of Conduct Both Parties agree that all their actions in carrying out the provisions of this Contract shall be in compliance with applicable laws and regulations and neither Party will pay or accept bribes, kickbacks or other illegal payments, or engage in unlawful conduct. 41.7 Construction This Contract, the Exhibits and the Attachment hereto have been drafted jointly by the Parties and in the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either Party. 41.8 Counterparts This Contract may be signed in any number of counterparts with the same effect as if the signature(s) on each counterpart were upon the same instrument. 41.9 Applicable Law This Contract shall be interpreted, construed and governed, and the rights of the Parties shall be determined, in all respects, according to the laws of the State of New York without regard to its conflict of law rules. 41.10 Survival Termination or expiration of this Contract for any reason shall not release either Party from any liabilities or obligations set forth in this Contract that (i) the Parties have expressly agreed shall survive any such termination or expiration or (ii) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 63 65 41.11 U.N. Convention on the International Sales of Goods The U.N. Convention on the International Sales of Goods shall not apply or otherwise have any legal effect with respect to this Contract. 41.12 Waiver No delay or omission by either Party to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. No payment of money by any person or entity shall be construed as a waiver of any right or power under this Contract. A waiver by any Party of any of the covenants, conditions or contracts to be performed by the other Party or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or contract herein contained. No change, waiver or discharge hereof shall be valid unless in writing and signed by a duly authorized representative of the Party against which such change, waiver or discharge is sought to be enforced. ARTICLE 42 - ATTACHMENTS The following Attachments are incorporated in this Contract: Attachment A Payment Plan Attachment B Pages 5 through 11 of the EchoStar 5 Insurance Policy [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 64 66 ARTICLE 43 - TERMINATION RIGHT Notwithstanding anything to the contrary herein, if by the TBD Deadline the Parties are unable to reach final agreement upon: (1) the pricing and schedule for the options described in Article [CONFIDENTIAL INFORMATION REDACTED], or (2) the TBD terms of this Contract, the Statement of Work, Satellite Performance Specification, Product Assurance Program Plan, Satellite Program Test Plan and Payment Plan, then Purchaser may immediately terminate this Contract by providing written notice to Contractor. If such termination occurs, then Purchaser shall pay Contractor [CONFIDENTIAL INFORMATION REDACTED] within [CONFIDENTIAL INFORMATION REDACTED] days of receipt of an invoice. All other liabilities and obligations of the Parties shall be released, waived and terminated, except for those set forth in Articles 20, 35 and 37. ARTICLE 44 - COOPERATION REGARDING SPOT BEAMS Until the TBD Deadline, Contractor shall use reasonable commercial efforts to cooperate with [CONFIDENTIAL INFORMATION REDACTED] regarding the coordination and development of the requirements and footprints for the spot beams for the Satellite and [CONFIDENTIAL INFORMATION REDACTED] satellite being manufactured by [CONFIDENTIAL INFORMATION REDACTED] In addition, upon Purchaser's request, Contractor shall use reasonable commercial efforts to cooperate with [CONFIDENTIAL INFORMATION REDACTED] as necessary to change the initial requirements and/or footprints of the spot beams for the Satellite and the [CONFIDENTIAL INFORMATION REDACTED] satellite. Finally, Contractor shall use reasonable commercial efforts to cooperate with [CONFIDENTIAL INFORMATION REDACTED] as necessary to ensure that the spot beams of the Satellite and the [CONFIDENTIAL INFORMATION REDACTED] satellite, as deployed, will operate in accordance with the final approved requirements and footprints. In performing [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 65 67 the above obligations, Contractor shall not be required to disclose any of its proprietary information to [CONFIDENTIAL INFORMATION REDACTED]. ARTICLE 45 - [CONFIDENTIAL INFORMATION REDACTED] ARTICLE 46 - KEY PERSONNEL The Contractor will assign properly qualified and experienced personnel to the program contemplated under the Contract. Personnel assigned to the following positions shall be considered "Key Personnel": a) the Contractor's Program Manager b) the Contractor's Contracts Manager c) the Contractor's Product Assurance Manager d) the Contractor's Systems Engineering Manager e) the Contractor's Vehicle Manager The Purchaser shall have the right to approve the Contractor's Program Manager which approval shall not be unreasonably withheld or delayed. Key Personnel shall not be assigned to other duties without the Contractor giving prior written notice to and consulting with the Purchaser. The Contractor shall provide a chart to the Purchaser of the program Key Personnel and shall keep such chart current. Additionally, for so long as Randy Tyner is associated with Contractor as an employee or consultant, Purchaser shall have unrestricted access to Mr. Tyner for purposes of designing the payload and its specifications. Mr. Tyner shall have a key decision-making role on payload-related issues, and shall be a primary interface with the Purchaser on all payload-related technical and performance issues. [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 66 68 IN WITNESS THEREOF, the Parties have executed this Amended and Restated Contract by their duly authorized officers as of the date set forth in the Preamble. ECHOSTAR ORBITAL SPACE SYSTEMS/LORAL, INC. CORPORATION By: By: -------------------------------- ------------------------------------ Name: Name: ------------------------------ ---------------------------------- Title: Title: ----------------------------- --------------------------------- ATTACHMENT A PAYMENT PLAN [CONFIDENTIAL INFORMATION REDACTED] ATTACHMENT B [SPACE SYSTEMS LORAL LOGO] SS/L-TP99022 Contract 67