EX-10.1 2 d86297ex10-1.txt LAUNCH SERVICE CONTRACT 1 EXHIBIT 10.1
Certain portions of this document have been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934.
LAUNCH SERVICE CONTRACT
BETWEEN
LOCKHEED MARTIN COMMERCIAL LAUNCH SERVICES, INC.
AND
ECHOSTAR ORBITAL CORPORATION
CONFIDENTIAL TREATMENT 2
CONTRACT FOR LAUNCH SERVICES
This Contract is made and entered into as of January 31, 2001 by and between Lockheed Martin Commercial Launch Services, Inc., a Delaware corporation, having its principal place of business at 1660 International Drive, Suite 800, McLean, Virginia 22102 ("Contractor") and EchoStar Orbital Corporation, a Colorado corporation, having its principal place of business at 5701 South Santa Fe Drive, Littleton, Colorado 80120 ("Customer").
ARTICLE 1 DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the following meanings:
CSLA means the Commercial Space Launch Act, 49 U.S.C. Sections 70101 - 70119, as amended.
Constructive Total Failure [CONFIDENTIAL MATERIAL REDACTED]
Contract means this instrument and all exhibits attached hereto, as the same may be amended from time to time in accordance with the terms hereof, including:
Exhibit A - Atlas Launch Services Statement of Work for the EchoStar Program, which presently covers Atlas Launch Services for EchoStar VII and EchoStar VIII, [CONFIDENTIAL MATERIAL REDACTED]
Exhibit B - EchoStar VII Interface Control Document
Exhibit C - Proton Launch Services Statement of Work for the EchoStar Program, which presently covers Proton Launch Services for EchoStar VII and EchoStar VIII, [CONFIDENTIAL MATERIAL REDACTED]
Exhibit D - EchoStar VIII Interface Control Document
Contract Price means, with respect to a particular Launch Service, the Contract Price as set forth in Article 4 entitled "Contract Price" for the relevant Launch Service.
Excusable Delay shall have the meaning set forth in Section 8.1 entitled "Excusable Delays Defined."
Failure Review Board shall have the meaning and the duties set forth in Section 19.5 entitled "Failure Review Board."
Insured Launch Activities [CONFIDENTIAL MATERIAL REDACTED]
Intentional Ignition means (a) for Atlas, the point in time during the launch countdown when the engine start command is issued, causing the start bottle to be
1 CONFIDENTIAL TREATMENT 3
pressurized and hypergolics to enter the chamber, and (b) for Proton, the ignition of the first-stage motor(s) of the Launch Vehicle.
L means the first day of the Launch Period, Launch Slot, or Launch Date, whichever is in then effect.
Launch [CONFIDENTIAL MATERIAL REDACTED]
Launch Date means the calendar date within the Launch Slot during which the Launch is scheduled to occur, as established in accordance with Article 6 entitled "Launch Schedule" and as such Launch Date may be adjusted in accordance with Article 7 entitled "Launch Schedule Adjustments."
Launch Opportunity [CONFIDENTIAL MATERIAL REDACTED]
Launch Period [CONFIDENTIAL MATERIAL REDACTED]
Launch Service means those services to be provided by Contractor to Customer for a single Launch as set forth in the applicable Statement of Work.
Launch Site means (a) for Atlas, Cape Canaveral Air Station located in Florida and (b) for Proton, the Baikonur Cosmodrome located in Kazakhstan, or such other place as mutually agreed by the Parties.
Launch Slot [CONFIDENTIAL MATERIAL REDACTED]
Launch Vehicle [CONFIDENTIAL MATERIAL REDACTED]
Optional Launch Service means a Launch Service which may be ordered by the Customer pursuant to Article 3.
Partial Failure [CONFIDENTIAL MATERIAL REDACTED]
Party or Parties means Contractor, Customer or both.
Reflight Launch means the additional Launch Service(s) that may be provided to Customer in accordance with Article 19 entitled "Reflight Launch or Refund Protection."
Reflight Launch Fee means the fee for Reflight Launch protection set forth in Article 19 entitled "Reflight Launch or Refund Protection."
Refund means the amount that may be payable to Customer pursuant to Section 19.3 entitled "Terms Governing Refund" in the event the Launch Service is a Total Failure, Constructive Total Failure or Partial Failure.
2 CONFIDENTIAL TREATMENT 4
Refund Fee means the fee for Refund protection set forth in Article 19 entitled "Reflight Launch or Refund Protection."
Related Third Parties [CONFIDENTIAL MATERIAL REDACTED]
Satellite means the applicable Customer-provided satellite among EchoStar VII, EchoStar VIII and additional satellites, if any, covered by Optional Launch Services (with specific satellites to be identified later) and associated property to be launched on the Launch Vehicle, with technical specifications and characteristics set forth in the applicable Statement of Work.
Satellite Separation means the physical separation of the Satellite from the Launch Vehicle pursuant to the command activating the separation system that releases the Satellite.
Statement of Work means that document attached as Exhibit A to this Contract for Atlas and as Exhibit C to this Contract for Proton, as applicable.
Terminated Ignition [CONFIDENTIAL MATERIAL REDACTED]
Termination Charge means the charge calculated in accordance with Section 21.7 entitled "Termination Charge."
Third Party [CONFIDENTIAL MATERIAL REDACTED]
Total Failure [CONFIDENTIAL MATERIAL REDACTED]
Trade Agreement [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 2 SERVICES TO BE PROVIDED
2.1 Base-Lined Launch Services. Contractor shall furnish a Launch Service for one Launch of the EchoStar VII Satellite from Cape Canaveral Air Station ("CCAS"), Florida, United States of America, in accordance with Exhibit A entitled "Atlas Launch Services Statement of Work for the EchoStar Program," and a Launch Service for one Launch of the EchoStar VIII Satellite from Baikonur Cosmodrome ("Baikonur") in Baikonur, Kazahkstan, in accordance with Exhibit C entitled "Proton Launch Services Statement of Work for the EchoStar Program," each scheduled for the Launch Periods as specified in Section 6.1 entitled "Launch Period."
2.2 Optional Launch Services. Contractor shall furnish up to [CONFIDENTIAL MATERIAL REDACTED] Launches of Satellites from CCAS and/or Baikonur in accordance with Exhibit A entitled "Atlas Launch Services Statement of Work for the EchoStar Program" and/or Exhibit C entitled "Proton Launch Services Statement of Work for the EchoStar Program," as applicable, should one or more Optional Launch
3 CONFIDENTIAL TREATMENT 5 Services be exercised by Customer in accordance with Article 3 entitled "Optional Launch Services."
2.3 [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 2A [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 2B [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 2C [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 3 OPTIONAL LAUNCH SERVICES
3.1 Period of Performance of Optional Launch Services. In no event shall Customer have the right to order Optional Launch Services under this Contract that have initial Launch Period end dates that are later than [CONFIDENTIAL MATERIAL REDACTED]. Once an Optional Launch Service is ordered by Customer, it shall be considered a Launch Service under this Contract.
3.2 Exercising of Optional Launch Services. No later than [CONFIDENTIAL MATERIAL REDACTED], Customer will provide Contractor a written notice containing the requested Launch Vehicle performance capabilities, Customer's Launch Vehicle preferences for the mission, Satellite configuration, three-month Launch Period and option exercise date for such Launch Service. Contractor shall [CONFIDENTIAL MATERIAL REDACTED]. After receipt of the Contractor's letter, Customer may, consistent with Section 3.3 and subject to Section 3.6, exercise the Optional Launch Service by providing a written notice to the Contractor containing the pertinent Satellite information, the desired three-month Launch Period, the desired Atlas or Proton configuration, as applicable, the name and general description of the mission, and [CONFIDENTIAL MATERIAL REDACTED], all no later than [CONFIDENTIAL MATERIAL REDACTED] prior to the first day of the desired Launch Period [CONFIDENTIAL MATERIAL REDACTED]
[CONFIDENTIAL MATERIAL REDACTED]
4 CONFIDENTIAL TREATMENT 6
ARTICLE 4 CONTRACT PRICE
4.1 Baseline Contract Prices. The Contract Price for each baseline Launch Service for payment purposes shall be:
Atlas IIIB(D): [CONFIDENTIAL MATERIAL REDACTED] Proton K/Block DM: [CONFIDENTIAL MATERIAL REDACTED]
4.2 Optional Launch Service Prices. The Contract Price for each Optional Launch Service shall be:
Atlas IIIB(d): [CONFIDENTIAL MATERIAL REDACTED] Atlas V(401): [CONFIDENTIAL MATERIAL REDACTED] Atlas V(402): [CONFIDENTIAL MATERIAL REDACTED] Proton K/Block DM: [CONFIDENTIAL MATERIAL REDACTED] Proton M/Breeze M: [CONFIDENTIAL MATERIAL REDACTED]
4.3 Taxes for Atlas Launch Services.
[CONFIDENTIAL MATERIAL REDACTED]
4.4 Duties and Taxes for Proton
[CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 5 PAYMENT
5.1 Timing of Payments. Payment of the Contract Price and all other amounts set forth herein shall be in United States Dollars, subject to conditions set forth in Article 7 and made in accordance with the following schedule:
5.1.1 Initial Payments. Customer will make an initial payment of [CONFIDENTIAL MATERIAL REDACTED] of the Contract Price for each Launch Service as set forth in Article 4. This initial payment is due at Contract signing for the two baseline Launch Services and with the Optional Launch Service exercise notification letter for each Optional Launch Service exercised by Customer.
5.1.2 Remaining Payments. The balance of the payments for each Launch Service specified in Article 2 entitled "Services To Be Provided" shall be paid in accordance with the schedule set forth in Table 5.1, 5.2, or 5.3, as applicable, where "L" is the [CONFIDENTIAL MATERIAL REDACTED]. If a payment due date falls on a Saturday, Sunday or legal bank holiday, then payment shall be due on the following
5 CONFIDENTIAL TREATMENT 7 business day. Except as otherwise set forth to the contrary in Article 19, no portion of the Contract Price shall be refundable in the event the Launch Service fails to perform in accordance with the Statement of Work. Any portion of the Contract Price set forth in Table 5.1, 5.2, or 5.3, below, due after Launch shall be payable on the date due whether or not the Launch Service performs in accordance with the Statement of Work.
5.1.3 Shortened Delivery Schedule. In the event that the Parties mutually agree to a shorter delivery schedule than [CONFIDENTIAL MATERIAL REDACTED] for a particular Optional Launch Service, then the initial payment due from Customer shall be equal to the sum of all payments that would otherwise be due and payable under Table 5.3 below at the time Customer exercises that particular Optional Launch Service.
Table 5.1 Launch Payment Schedule for baseline Atlas Launch Service Percent of Payment Due Payment Number Contract Price Date -------------- -------------- ----------- 2 [CONFIDENTIAL MATERIAL REDACTED] 3 [CONFIDENTIAL MATERIAL REDACTED] 4 [CONFIDENTIAL MATERIAL REDACTED] 5 [CONFIDENTIAL MATERIAL REDACTED] 6 [CONFIDENTIAL MATERIAL REDACTED] 7 [CONFIDENTIAL MATERIAL REDACTED] 8 [CONFIDENTIAL MATERIAL REDACTED] 9 [CONFIDENTIAL MATERIAL REDACTED] 10 [CONFIDENTIAL MATERIAL REDACTED] Table 5.2 Launch Payment Schedule for baseline Proton Launch Service Percent of Payment Due Payment Number Contract Price Date -------------- -------------- ----------- 2 [CONFIDENTIAL MATERIAL REDACTED] Contract Signing 3 [CONFIDENTIAL MATERIAL REDACTED] 4 [CONFIDENTIAL MATERIAL REDACTED] 5 [CONFIDENTIAL MATERIAL REDACTED] 6 [CONFIDENTIAL MATERIAL REDACTED] 7 [CONFIDENTIAL MATERIAL REDACTED] 8 [CONFIDENTIAL MATERIAL REDACTED] 9 [CONFIDENTIAL MATERIAL REDACTED] 10 [CONFIDENTIAL MATERIAL REDACTED] 6 CONFIDENTIAL TREATMENT 8
Table 5.3 Launch Payment Schedule for Optional Launch Services Percent of Payment Due Payment Number Contract Price Date -------------- -------------- ----------- 2 [CONFIDENTIAL MATERIAL REDACTED] 3 [CONFIDENTIAL MATERIAL REDACTED] 4 [CONFIDENTIAL MATERIAL REDACTED] 5 [CONFIDENTIAL MATERIAL REDACTED] 6 [CONFIDENTIAL MATERIAL REDACTED] 7 [CONFIDENTIAL MATERIAL REDACTED] 8 [CONFIDENTIAL MATERIAL REDACTED] [CONFIDENTIAL MATERIAL REDACTED] Payment Due Payment Number Price Date -------------- -------------- ----------- 1 [CONFIDENTIAL MATERIAL REDACTED] [CONFIDENTIAL MATERIAL REDACTED] Payment Due Payment Number Price Date -------------- -------------- ----------- 1 [CONFIDENTIAL MATERIAL REDACTED] 5.2 Payment Instructions. All payments to Contractor will be by check hand-delivered to Jack Zivic (or other individual authorized by Contractor in writing to receive such payments) at Customer's office at 5701 S. Santa Fe Drive, Littleton, Colorado 80120.
5.3 Invoices. All payments in connection with this Contract shall be made on their respective due dates, or within thirty (30) days after Customer's receipt of the corresponding invoice, whichever is later, except for the first two payments for the base-lined Launch Services and the first payment for each Optional Launch Service, which shall be made at the times set forth above. Payments shall be deemed made upon delivery of notice to Contractor that a valid check for the payable amount is available to be picked up at the above address.
5.4 Interest on Payments Due. If any amount due to either Party under this Contract shall remain unpaid after its due date, then the paying Party shall pay simple interest to the other Party [CONFIDENTIAL MATERIAL REDACTED]. Interest will be computed commencing on the due date to but not including the day payment is actually made. The Party owed the interest shall provide the paying Party an invoice for payment (due within thirty (30) days after receipt of the invoice) of the interest as soon as practicable after the paying Party has completed its payment obligations on the original amount due.
5.5 Accelerated Payments. In the event that any Launch Service is accelerated as described in Article 7 entitled "Launch Schedule Adjustments," the next payment due for such Launch Service following such acceleration shall be increased to include the balance
7 CONFIDENTIAL TREATMENT 9 of the payments that would have been made had the Contract payments been scheduled on the basis of the accelerated Launch Period.
5.6 Postponed Payments.
5.6.1 Postponements by Contractor. In the event of postponement declared by Contractor for any reason including without limitation those in Article 7 entitled "Launch Schedule Adjustments," the Contract payments shall be suspended for the length of the delay and then resumed with all remaining payments postponed by the amount of the delay, except for any payments due after Launch.
5.6.2 Postponements by Customer. In the event of postponement declared by Customer for any reason including those in Article 7 entitled "Launch Schedule Adjustments," the Contract payments, including due dates, will not be affected and shall remain [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 6 LAUNCH SCHEDULE
6.1 Launch Period. The Launch Period(s) for the Launch Service(s) shall be as follows: Launch Period Launch Service Satellite ------------- -------------- --------- #1: 01 October through 31 December 2001 Atlas IIIB(d) EchoStar VII #2: 01 January through 31 March 2002 Proton K/Block DM EchoStar VIII [CONFIDENTIAL MATERIAL REDACTED] Customer shall use its reasonable commercial efforts to support the Launches during the Launch Periods stated above.
6.2 Determination of Launch Slot. A one month Launch Slot shall be established at least six months prior to the first day of the Launch Period in accordance with the following procedure. The Contractor will give notice to the Customer of a proposed Launch Slot within the Launch Period taking into account the requirements for a Launch Opportunity. The Parties will cooperate in good faith to agree on the selection of the Launch Slot. However, in the event that the Parties cannot mutually agree upon a Launch Slot within thirty (30) days of Contractor's proposal, then Contractor shall make such selection, as close as reasonably possible to the Customer's requirement, taking into account the available Launch Opportunities and the requirements and interests of all customers [CONFIDENTIAL MATERIAL REDACTED]
8 CONFIDENTIAL TREATMENT 10
Launch Date. A Launch Date shall be established at least three months prior to the first day of the Launch Slot, once established, in accordance with the following procedure. The Contractor will give notice to the Customer of a proposed Launch Date within the Launch Slot taking into account the requirements for a Launch Opportunity and general constraints on the satellite injection into the required orbit. The Parties will cooperate in good faith to agree on the selection of the Launch Date. However, in the event that the Parties cannot mutually agree upon a Launch Date within fifteen (15) days of Contractor's proposal, then Contractor shall make such selection, [CONFIDENTIAL MATERIAL REDACTED], taking into account the available Launch Opportunities and the requirements and interests of all customers [CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 7 LAUNCH SCHEDULE ADJUSTMENTS
7.1 Customer Launch Schedule Adjustments. Notwithstanding Customer's obligation to use its reasonable commercial efforts to support the Launches during the Launch Periods stated in Section 6.1 above, Customer may request either a postponement or advancement of the Launch Period, Launch Slot or Launch Date previously determined under Article 6 of this Contract entitled "Launch Schedule," by giving written notice to Contractor requesting a new Launch Period, Launch Slot or Launch Date. If the launch schedule adjustment results in a later Launch Period, Launch Slot or Launch Date, then the total number of calendar days of delay requested by Customer shall be attributed to Customer. The Parties will cooperate in good faith to select a new Launch Period, Launch Slot or Launch Date. However, in the event that the Parties cannot mutually agree within sixty (60) days of Customer's notice (or such shorter time period as Contractor may determine, in light of the proximity to the Launch), Contractor shall make such determination taking into account the available Launch Opportunities and the requirements and interests of all customers [CONFIDENTIAL MATERIAL REDACTED]
7.1.1 Base-lined Launch Services. Actual postponements or notices of postponement by Customer under this Article 7 for each base-lined Launch Service shall not extend beyond [CONFIDENTIAL MATERIAL REDACTED], after which date Contractor shall have the right to terminate the Launch Service pursuant to Section 21.4. In the event that a single actual postponement or notice of postponement, or cumulative actual postponements or notices of postponement, attributed to Customer of a base-lined Launch Service exceed a total of [CONFIDENTIAL MATERIAL REDACTED]
7.1.2 Optional Launch Services. Actual postponements or notices of postponement by Customer under this Article 7 for each Optional Launch Service exercised by Customer shall not extend beyond [CONFIDENTIAL MATERIAL REDACTED], after which Contractor shall have the right to
9 CONFIDENTIAL TREATMENT 11
terminate the Launch Service pursuant to Section 21.4, [CONFIDENTIAL MATERIAL REDACTED]
7.1.3 Should Range Support by the United States government be initiated prior to the receipt of Customer's notice of postponement or prior to the determination of a final Launch Period or Launch Date as described in Section 7.1 that is different from the then-current launch schedule, Customer will be liable for the costs charged to Contractor by the United States government (on a pass-through basis, without mark-up) for any such Range Support during the period from and including six (6) days before the then-current Launch Date until such Range Support ceases. Such costs will be paid within thirty (30) days of receipt of the Contractor's invoice and shall in no event exceed a total amount of [CONFIDENTIAL MATERIAL REDACTED] for the baselined Atlas Launch Service. For each Atlas Optional Launch Service exercised by Customer, [CONFIDENTIAL MATERIAL REDACTED]. Range Support, as used in the preceding sentence, means those activities conducted by the United States government in connection with a Launch Service as described in Exhibit A entitled "Atlas Launch Services Statement of Work for the EchoStar Program" and supplies used in connection therewith, including supplying and loading of rocket propellant into the Launch Vehicle, and shall be coordinated by Contractor.
[CONFIDENTIAL MATERIAL REDACTED]
7.2 Contractor Launch Schedule Adjustments. Contractor may postpone or request an advancement of the Launch Period, Launch Slot or Launch Date previously determined under Article 6 entitled "Launch Schedule" by giving notice to Customer proposing a new Launch Period, Launch Slot or Launch Date. The Parties will cooperate in good faith to select a new Launch Period, Launch Slot or Launch Date. However, in the case of a postponement, if the Parties cannot mutually agree within sixty (60) days of Contractor's proposal (or such shorter time period as Contractor may determine, in light of the proximity to the Launch), Contractor shall make such determination in good faith taking into account the available Launch Opportunities and the requirements and interests of all customers [CONFIDENTIAL MATERIAL REDACTED]. Until the new Launch Period, Launch Slot or Launch Date is selected in accordance with this Section 7.2, the then-current launch schedule shall remain in effect.
7.2.1 If the final launch schedule adjustment results in a later Launch Period, Launch Slot or Launch Date, then the total number of calendar days of delay originally requested by Contractor shall be attributed to Contractor.
7.2.2 Postponements by Contractor under this Article 7 shall not exceed a total of [CONFIDENTIAL MATERIAL REDACTED] for each Launch Service. In the event that a single actual postponement or notice of postponement, or cumulative actual postponements or notices of postponement, attributed to Contractor exceed such maximum permissible postponement for any one Launch
10 CONFIDENTIAL TREATMENT 12
Service, that Launch Service shall, at the election of Customer, be subject to termination by Customer in accordance with Section 21.2.1.
7.3 Reserved.
7.4 Excusable Delays. [CONFIDENTIAL MATERIAL REDACTED], days during which an Excusable Delay exists as defined in Article 8 entitled "Excusable Delays" and which affect the launch schedule will not be included in determining the length of a postponement attributable to either Contractor or Customer under this Article 7.
7.5 Reserved.
7.6 Postponements Attributed to Non-Complying Party under Article 10. Should the failure of either Party to provide required data, hardware and services result in a delay to the launch schedule, then such delay shall be deemed a postponement attributed to the non-complying Party in accordance with this Article 7. Requirements to provide data, hardware and services, delays and the consequences of postponement attributable to the non-complying Party are described in Article 10 entitled "Additional Contractor and Customer Obligations Prior to Launch."
7.7 Obligation to Give Prompt Notice. Contractor and Customer acknowledge and agree that it is in the best interests of both Parties to promote certainty in launch schedule decisions and minimize disruption to other customers of Contractor. Therefore, the Parties agree to give prompt notice of any need for schedule change under this Article 7 or any actual or potential delay that might impact the launch schedule.
ARTICLE 8 EXCUSABLE DELAYS
[CONFIDENTIAL MATERIAL REDACTED]
8.2 Notice(s) of Excusable Delays. Contractor and Customer each acknowledge and agree that it is in the best interests of both Parties to promote certainty in launch schedule decisions and minimize disruption to other customers of Contractor. Therefore, the Parties agree to give prompt notice of any actual or potential Excusable Delay under this Article 8.
ARTICLE 9 COORDINATION AND COMMUNICATION BETWEEN CUSTOMER AND CONTRACTOR
9.1 Mission Managers and Program Directors. Each Party hereby identifies to the other the following Program Manager, Mission Manager and Program Directors to
11 CONFIDENTIAL TREATMENT 13
coordinate the activities under this Contract. The Program Manager, Mission Manager and Program Directors are not authorized to direct work contrary to the requirements of this Contract or make modifications to this Contract. All modifications to the terms, conditions and requirements of this Contract shall be made pursuant to Article 26 entitled "Amendment."
Contractor Program Directors are:
Mr. Marv Steinman (primary) Ms Ann Wildgen (Atlas back-up) Mr. John Casani (Proton back-up)
Contractor's Atlas Program Manager is:
Mr. Tony Narde
Contractor's Proton Program Directors are:
Mr. Vladimir Bronfman (LMCSS Satellite) Mr. Vitaly Lopan (Loral Satellite)
Customer's Mission Manager is:
Mr. Rohan Zaveri
[CONFIDENTIAL MATERIAL REDACTED]
9.3 Notices. All notices that are required or permitted to be given under this Contract shall be in writing and shall be delivered in person or sent by telefax, certified mail (return receipt requested) or air courier service to the representative and address set forth below, or to such other representative or address specified in a notice to the other Party. Notices shall be deemed effective upon delivery in person or upon confirmation of receipt in the case of telefax, certified mail or air courier.
Notices to Contractor:
Mr. Jack Zivic Manager, Business Operations International Launch Services 12999 Deer Creek Canyon Road M/S DC1400 Littleton, Colorado 80127-5146 Fax: (303) 971-9456
12 CONFIDENTIAL TREATMENT 14
Notices to Customer:
Mr. Rohan Zaveri Director of Space Programs EchoStar Orbital Corporation 5701 S. Santa Fe Drive Littleton, Colorado 80120 Fax: (303) 723-1099
with copies to:
Charlie Ergen President and Chief Executive Officer (same address and fax number as above)
David Moskowitz Senior Vice President and General Counsel (same address as above) Fax: (303) 723-1699
9.4 Communications in English. All documentation, notices, reports and correspondence under this Contract shall be in the English language. Contractor will translate all appropriate documents from Khrunichev and provide Russian translators for Khrunichev personnel as necessary for meetings, regardless of location.
ARTICLE 10 ADDITIONAL CONTRACTOR AND CUSTOMER OBLIGATIONS PRIOR TO LAUNCH
10.1 Obligation to Provide Information. Contractor shall provide to Customer the data, hardware and services identified in Section 6 of Exhibit A entitled "Atlas Launch Services Statement of Work for EchoStar Program" and Section 6 of Exhibit C entitled "Proton Launch Services Statement of Work for EchoStar Program" and Customer shall provide to Contractor the data, hardware and services identified in Section 6 of Exhibit A entitled "Atlas Launch Services Statement of Work for EchoStar Program" and Section 6 of Exhibit C entitled "Proton Launch Services Statement of Work for EchoStar Program,"
13 CONFIDENTIAL TREATMENT 15
in accordance with the schedules contained therein. The data, hardware and services shall be delivered in a condition suitable for their intended use.
10.2 Notification of Non-Compliance. The Party receiving the data, hardware or services referred to in Section 10.1 shall promptly notify the other in accordance with Section 9.3 in the event the data, hardware or services are not consistent with the requirements contained in the applicable Statement of Work or are delivered in a condition not suitable for their intended purpose. The notification shall contain a statement of the discrepancy and recommend solutions. The Party receiving the notification shall provide written direction to the other Party as to how to proceed, taking into account the recommended solutions within seven (7) days following receipt of notice.
10.3 Impact of Non-Compliance on Launch Schedule. In the event that the data, hardware or services to be supplied by one Party to the other, in accordance with Section 10.1 above, are not furnished in accordance with the required schedules set forth in the applicable Statement of Work or are delivered in a condition not suitable for their intended purpose, the receiving Party shall use reasonable commercial efforts to continue its obligations under this Contract without affecting the launch schedule or incurring additional expense. If however, despite the receiving Party's reasonable commercial efforts, such continuation is not possible and, as a result of the other Party's failure to provide data, hardware or services as required in accordance with Section 10.1 above, the launch schedule is adversely affected, then a launch schedule postponement shall be declared by the receiving Party under the appropriate provisions of Article 7 attributable to the Party failing to provide the data, hardware or services as required by the applicable Statement of Work or failing to deliver the data, hardware or services in a condition suitable for their intended purpose.
ARTICLE 11 FACTORY AND LAUNCH SITE ACCESS
[CONFIDENTIAL MATERIAL REDACTED]
ARTICLE 12 LICENSES, CLEARANCES AND PERMITS AND COMPLIANCE WITH UNITED STATES GOVERNMENT REQUIREMENTS FOR ATLAS LAUNCH SERVICES
12.1 Responsibility for Licenses, Clearances and Permits. Each Party shall be responsible for obtaining any licenses, clearances, permits and governmental authorizations, and for taking any actions, necessary to carry out its obligations under this Contract. Each Party shall use its reasonable commercial efforts to cooperate with the other Party and provide without cost all reasonable and necessary support for the other
14 CONFIDENTIAL TREATMENT 16 Party to apply for and maintain such licenses, clearances, permits and governmental authorizations.
12.2 Transfers of Technical Data. Each Party shall be responsible for compliance with applicable United States government laws and regulations relating to the transfer of technical data to the other Party or to Third Parties.
12.3 Customer Compliance with Requirements. Contractor has executed agreements with various United States government agencies for use of United States government-owned property and facilities relating to launch operations at CCAS in Florida. Customer and Contractor agree that they will comply with the United States government's laws, regulations, policies and directives as they relate to the performance of this Contract. Customer will indemnify Contractor and Contractor will indemnify Customer for any direct damages arising from violation of such laws, regulations, policies or directives by the indemnifying Party or its Related Third Parties. The Parties shall, before Launch, execute and deliver the Agreement for Waiver of Claims and Assumption of Responsibility, the execution of which is required by the United States Department of Transportation (C.F.R. Section 440.17(c)), as a condition of granting Contractor's license to conduct launch activities and Launch the Satellite.
12.4 Government Need. It is the policy of the United States government to support the commercialization of domestic launch services by making available to United States launch services providers its launch-related facilities. However, both Customer and Contractor agree that, in the event of imperative national need as set forth in the CSLA (49 U.S.C. Section 70109), the United States government may require use of United States government or Contractor property and personnel. In the event such use by the United States government necessitates subsequent rescheduling of Customer's Launch Service(s), Contractor will promptly notify Customer of the delay(s) and will reschedule any affected Launch Service(s) to accommodate all customers to the extent possible. Such delay shall be considered an Excusable Delay under Article 8. The United States government shall not be liable to Customer for any costs or damages, including any direct, indirect, special, incidental or consequential damages or any other revenue or business injury or loss, arising out of a delay caused by such priority use of property or personnel.
12.5 Compliance with U.S. Government Export/Import Statutes and Regulations.
12.5.1 Customer and Contractor hereby acknowledge that they will comply with all applicable statutes, regulations and licenses relating to the export and import of commodities, services or technical data out of and into the United States of America.
12.5.2 Customer acknowledges that Contractor must refuse to admit to any meeting and refuse to transmit any commodities, technical data or provide any defense services to a non-U.S. citizen participant who is not covered by an
15 CONFIDENTIAL TREATMENT 17
applicable license or agreement issued by the United States government and duly executed by the appropriate parties.
ARTICLE 13 GOVERNMENTAL APPROVALS, LICENSES, CLEARANCES, PERMITS AND COMPLIANCE WITH REQUIREMENTS FOR PROTON LAUNCH SERVICES
13.1 Parties Respective Obligations. Unless otherwise specified in this Contract, each Party is responsible for obtaining all governmental approvals, including without limitation any licenses, clearances or permits, from any governmental authority which has jurisdiction or authority to require such approvals, licenses, clearances or permits necessary to carry out such Party's respective obligations in accordance with this Contract.
13.2 Mutual Assistance. The Parties shall use reasonable commercial efforts to cooperate and provide each other upon request and without cost all reasonable and necessary assistance in obtaining any and all governmental approvals which they may respectively be required to obtain pursuant to this Contract.
13.3 Documentation. The Parties shall provide to each other upon request and without cost, acceptable documents or other reasonable evidence to show that they have obtained any and all governmental approvals which they respectively are required to obtain pursuant to this Contract.
13.4 Satellite