SPACE SEGMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS SPACE SEGMENT ASSIGNMENT AND
ASSUMPTION AGREEMENT (the “ Agreement ”) is
dated as of the 1st day of March 2011 and effective on the
Effective Date (as defined below) by and between TELESAT IOM
LIMITED, a corporation organized and existing under the laws of the
Isle of Man (“ Telesat IOM ”) and LORAL SPACE
& COMMUNICATIONS INC., a corporation organized and existing
under the laws of the State of Delaware (“ Loral Space
”). The parties hereto may be referred to individually as a
“ Party ” and collectively as the “
Parties ”.
W I T N E S S E T
H:
WHEREAS , ViaSat, Inc., a
corporation organized and existing under the laws of the State of
Delaware (“ ViaSat ”), and Space Systems/Loral,
Inc., a Delaware corporation and an indirect, wholly-owned
subsidiary of Loral Space (“ SS/L ”), entered
into a contract, dated as of January 7, 2008, for the
construction, testing and purchase of the ViaSat-1 satellite (the
“ Satellite ”); and
WHEREAS , Loral Space and
ViaSat have entered into a Beam Sharing Agreement, dated as of
January 11, 2008 (the “ Beam Sharing Agreement
”), contemplating a beam sharing arrangement between ViaSat
and Loral Space for the Satellite; and
WHEREAS , Loral Space and
SS/L have entered into a Loral Payload Contract, dated as of
January 11, 2008 (as amended by Amendment No. 1 thereto dated
July 30, 2008, the “ Loral Payload Contract
”), with respect to the Loral Payload (as defined in the Beam
Sharing Agreement) on the Satellite; and
WHEREAS , Loral Space,
Telesat Canada and ViaSat entered into a Cooperation Agreement,
dated as of January 11, 2008 (the “ Cooperation
Agreement ”), with respect to, inter alia , the
operation of the Satellite at the 115 degrees W.L. orbital
location; and
WHEREAS, Loral Space and
Telesat IOM are entering into the Barrett Assignment Agreement
contemporaneously with this Agreement (the “ Barrett
Assignment Agreement ”), pursuant to which Loral Space
will assign to Telesat IOM a contract with Barrett Xplore Inc.
(“ Barrett ”) to provide certain space segment
and gateway services to Barrett; and
WHEREAS , Loral Space, Loral
Canadian Gateway Corporation, a Canadian corporation (“
LCGC ”) and Telesat Canada, a Canadian corporation
(“ Telesat Canada ”) are entering into a Gateway
Assignment and Assumption Agreement contemporaneously with this
Agreement (the “ Gateway Assignment Agreement ”)
pursuant to which LCGC will assign contracts associated with the
gateway facilities for the operation of the Satellite to Telesat
Canada; and
WHEREAS , Loral Space desires
to assign to Telesat IOM, and Telesat IOM desires to assume from
Loral Space, Loral Space’s rights and obligations under the
agreements set forth in Schedule-1 (collectively, the “
Loral Agreements ”), according to the terms and
conditions set forth below;
NOW, THEREFORE , in
consideration of the foregoing premises and of the mutual
representations, warranties, covenants and agreements hereinafter
contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
1.0 Assignment by Loral Space to Telesat IOM and Assumption
by Telesat IOM from Loral Space of the Loral Agreements
1.1 For and in consideration of
(x) payment by Telesat IOM to Loral Space of the Loral Payment
(as defined below) and (y) and assumption by Telesat IOM from
Loral Space of the Assumed Liabilities (as defined below), Loral
Space hereby absolutely and irrevocably transfers, assigns, sets
over and conveys unto Telesat IOM any and all of its rights, title
and interest in, to and under the Loral Agreements and any and all
of Loral Space’s burdens, duties, obligations and liabilities
under the Loral Agreements from and after the Effective Date.
Telesat IOM hereby accepts such assignment and, without limiting,
and in furtherance of, the foregoing, hereby expressly assumes such
burdens, including the Assumed Payments (as defined below), and
agrees to observe and perform all of the duties, obligations,
terms, provisions and covenants, and to pay and discharge all of
the liabilities of Loral Space to be observed, performed, paid or
discharged from and after the Effective Date under the Loral
Agreements (the “ Assumed Liabilities ”), in
each case with the same force and effect as though Telesat IOM were
a party to each such Loral Agreement. “Assumed
Payments” means all amounts to be assumed and paid by Telesat
IOM pursuant to the Loral Agreements following the Effective Date,
which amounts are estimated in the attached Schedule 2:
“Disclosure Schedule”. The Assumed Liabilities shall
include, without limitation, Loral Space’s obligations under
Section 2.10 of the Cooperation Agreement. It is understood
and agreed that, except as set forth below in Section 1.3,
from and after the Effective Date Loral Space shall be released
from any and all further liabilities and obligations under the
Loral Agreements, and Telesat IOM shall cooperate with Loral Space
and use commercially reasonable efforts to assist Loral Space in
obtaining from the parties to the Loral Agreements a full release
of its obligations under the Loral Agreements.
1.2 On the Effective Date, Telesat
IOM shall pay to Loral Space all amounts paid by Loral Space
pursuant to the Loral Agreements (whether paid to ViaSat, SS/L, the
launch services provider or insurance broker) on or prior to the
Effective Date identified in the attached Schedule 2:
“Disclosure Schedule” (the “ Loral Payment
”). The Loral Payment shall be made without reduction for any
tax imposed by Canada or the Isle of Man with respect to the
transactions contemplated by this Agreement. In the event that
Loral Space receives a refund or any reimbursement for any amount
included in the Loral Payment, Loral Space shall refund the amount
of any refund or reimbursement received by Loral Space to Telesat
IOM within ten (10) days of receipt of such refund or
reimbursement.
1.3 Notwithstanding anything in this
Agreement to the contrary, Loral Space shall indemnify, hold
harmless, and defend (at Telesat IOM’s request), Telesat IOM
and its Affiliates from and against any and all liabilities,
losses, costs, claims, damages, penalties and expenses, including
reasonable out-of-pocket attorneys’ fees and disbursements,
whether direct or indirect (collectively, “ Losses
”), suffered or incurred by Telesat IOM or its Affiliates
relating to the Loral Agreements assigned hereunder as a result of
or arising directly or indirectly out of or in connection with any
act or omission of Loral Space or any other breach of any covenant
or agreement set forth under the Loral Agreements, where such act
or omission or breach occurred prior to the Effective Date, unless
such Losses arise directly or indirectly as a result of or in
connection with Telesat IOM’s default, gross negligence or
willful misconduct.
1.4 Telesat IOM shall indemnify, hold
harmless, and defend (at Loral Space’s request), Loral Space
and its Affiliates from and against any and all Losses suffered or
incurred by Loral Space or its Affiliates relating to the Loral
Agreements assigned hereunder arising on or after the Effective
Date, unless such Losses arise directly or indirectly as a result
of or in connection with Loral Space’s default, gross
negligence or willful misconduct.
1.5 For purposes of this Agreement,
an “Affiliate” of Telesat IOM or Loral Space, as
applicable, shall be defined as any individual, partnership,
limited liability company, corporation, joint stock company, trust,
unincorporated association, joint venture or other entity
(i) directly or indirectly controlling (including all
directors, officers, members and partners of such person or
entity), controlled by, or under direct or indirect common control
with, Telesat IOM or Loral Space, as applicable, or (ii) that
directly or indirectly owns more than fifty percent (50%) of any
class of voting or equity securities of Telesat IOM or Loral Space,
as applicable. “Control” shall mean the power, directly
or indirectly, to direct or cause the direction of the management
and policies of another entity whether through the ownership of
voting securities or voting interests, by contract or otherwise. In
addition, for purposes of this Agreement, SS/L and its subsidiaries
are deemed to not be Affiliates of Loral Space or included within
such term.
1.6 The indemnifying party shall have
the right, upon written notice to the indemnified party, to
investigate, contest, defend or settle any asserted liability that
may result in a Loss with respect to which the indemnified party is
entitled to indemnification pursuant to this Agreement, as the case
may be, subject to a reservation of rights; provided that the
indemnified party may, at its option and at its own expense,
participate in the investigation, contesting, defense or settlement
of any such asserted liability through representatives and counsel
of its own choosing; and, provided further, that the indemnifying
party shall not settle any asserted liability unless (i) such
settlement is on exclusively monetary terms or (ii) the
indemnified party shall have consented to the terms of such
settlement, which consent shall not unreasonably be withheld. If
requested by the indemnifying party, the indemnified party will, at
the sole cost and expense of the indemnifying party, cooperate with
the indemnifying party and its counsel in contesting any asserted
liability or, if appropriate and related to the asserted liability
in question, in making any counterclaim against the third party
claimant, or any cross-complaint against any person (other than the
indemnified party or its Affiliates). Unless and until the
indemnifying party elects to defend the asserted liability, the
indemnified party shall have the right, at its option and at the
indemnifying party’s expense, to do so in such manner as it
deems appropriate; provided, however, that the indemnified party
shall not settle, compromise or pay any asserted liability for
which it seeks indemnification hereunder without the prior written
consent of the indemnifying party (which shall not be unreasonably
withheld).
1.7 All transfer, documentary, sales,
use, stamp, registration, goods and services, provincial sales,
harmonized sales and other such taxes, and all conveyance fees,
recording charges and other fees and charges (including any
penalties and interest) incurred in connection with consummation of
the transactions contemplated by this Agreement shall be paid by
Telesat IOM when due, and Telesat IOM will, at its own expense,
file all necessary tax returns and other documentation with respect
to all such taxes, fees and charges, and, if required by applicable
law, Loral Space will, and will cause its Affiliates to, join in
the execution of any such tax return and other documentation.
2.0 Representations and Warranties
2.1 Except as disclosed in
Schedule 2 hereto (the “ Disclosure Schedule
”) delivered by Loral Space to Telesat IOM in connection with
this Agreement, Loral Space represents and warrants to Telesat IOM
as o
