INSURING AGREEMENTS
In consideration of payment of the Premium and in reliance upon the statements in the Declarations and in the Underwriting Information, all of which is made a part hereof, and subject to all the terms, conditions, limitations and exclusions of this insurance, the Insurers agree with the Insured as follows:
(a) In the event of an Occurrence between Attachment of Risk and Termination of Risk
resulting in a Total Loss or Constructive Total Loss the Insurers shall pay the Loss Payee the Sum Insured, or
(b) In the event of an Occurrence between Attachment of Risk and Termination of Risk
resulting in a Partial Loss the Insurers shall indemnify the Loss Payee in accordance with Definition 7 (Partial Loss).
(c) Before a loss is determined to be a Total Loss, Constructive Total Loss or Partial
Loss, the Insured, must demonstrate, based on reasonable judgement that all available redundancy and all available technical margins have been used and the Spacecraft, or partially failed portion thereof, cannot be used for its intended communications purposes.
(d) The Insured shall have the option and right to claim a Partial Loss, in lieu of a loss
that otherwise would be a Total Loss or Constructive Total Loss hereunder. However, the Insured shall not subsequently claim a Total Loss, or Constructive Total Loss for the Spacecraft due to the same Occurrence.
(e) If there is a loss indemnifiable under this insurance which, within reasonable time,
could be satisfactorily corrected or compensated for by additional ground
installations, procedural changes, software development and/or any other means, the
Insurers will at their option either:
(1) pay or indemnify the Insured as set forth above, or
(2) bear all necessary costs and expenses incurred by the Insured as a result of
the corrective measures.
(f) The total amount paid for the Spacecraft for all claims under this insurance shall not
exceed the Sum Insured for the Spacecraft. However, in the event that the Insurers opt for the implementation of corrective measures as provided for above which fail to achieve satisfactory correction of, or compensation for the loss, the Insurers will bear all necessary costs and expenses related to the corrective measures taken under Insuring Agreement (e) above in addition to the Sum Insured or, in the event of Partial Loss, in addition to the amount of indemnification for the Spacecraft.
(g) In the event the Insurers have previously paid for a loss under this insurance, the
amount payable for a subsequent loss shall be adjusted to eliminate any duplicative recovery for loss.
(h) A Total Loss, Constructive Total Loss or Partial Loss shall not be deemed to have
occurred unless the Occurrence causing such loss has manifested itself by telemetry or payload performance data or lack thereof, or any other ground measurement, recorded between Attachment of Risk and Termination of Risk, and the Insured has filed a Proof of Loss with the Insurers in accordance with Condition 3.
(i) In the event of a loss the Insured may operate the Spacecraft in any configuration
necessary for its intended communications purpose; provided, however, any claim shall be calculated using the Spacecraft configuration that produces the lowest loss amount.
9. PREDICTED CHANNEL LIFE
"Predicted Channel Life" means, for each RF Channel, the period of time, measured in years and/or partial years (rounded to the nearest one tenth of a year) within the Expected Channel Life of said RF Channel, during which such RF Channel is expected to be available to operate without experiencing RF Channel Failure.
10. RF CHANNEL
"RF Channel" means that combination of connected elements within the overall communications subsystem of the Spacecraft that taken together provide a discrete reception and re-transmission capability.
11. RF CHANNEL FAILURE(S)
"RF Channel Failure(s)" means the permanent (including permanently intermittent) physical loss of, or damage to, or failure of an RF Channel(s) to meet the Spacecraft Performance Specifications, such that the Insured, using reasonable judgement and after examining all technical alternatives for correcting the failure, reasonably demonstrates that the RF Channel cannot be used for the intended communications purposes of the Insured. The Insured must use all available spare components and reasonably available technical margins before any RF Channel is considered a RF Channel Failure.
If because of propellant loss, power loss or other deficiencies, it is reasonably demonstrated through telemetry data and in-orbit tests that an RF Channel, even though functioning correctly at the Termination of Risk Period is likely to experience RF Channel Failure before the end of the Insured Spacecraft Life as the result of an Occurrence between Attachment of Risk and Termination of Risk, then the end of Predicted RF Channel Life for that RF Channel shall be the date which the Insured demonstrates with reasonable certainty that the RF Channel cannot be used for its intended communication purpose.
Degradation of Spacecraft performances continuing beyond Termination of Risk which is demonstrated with reasonable certainty and which is the result of an Occurrence between Attachment of Risk and Termination of Risk shall be taken into account to determine the date of predicted RF Channel Failure.
12. SPACECRAFT
"Spacecraft" means exclusively the PALAPA D telecommunications Spacecraft manufactured by Thales Alenia Space France delivered pursuant to the terms of the Construction Contract referenced in Definition 3 (Contract(s)).
13. SPACECRAFT PERFORMANCE SPECIFICATIONS
"Spacecraft Performance Specifications" means the relevant Spacecraft performance specifications contained in Appendix B of the Construction Contract, and any amendments notified to Insurers prior to Attachment of Risk, pursuant to Condition 20 (Material Change) of this Policy.
14. TOTAL EXPECTED CHANNEL LIFE
"Total Expected Channel Life" shall mean the weighted sum of the Expected Channel Life of each of the twenty-four (24) C-band RF Channels and eleven (11) Extended C-band RF Channels and five (5) Ku-band RF Channels on the Spacecraft.
CONDITIONS
1. DECLARATIONS
By acceptance of this insurance, the Insured agrees that the statements in the Declarations and in the Underwriting Information are its agreements and representations, that this insurance is issued in reliance upon such agreements and the truth of such representations and that this insurance embodies all agreements existing between the Insured and the Insurers or any of their agents relating to this Insurance.
2. CHANGES
Notice to or knowledge possessed by any agent or other person shall not effect a waiver or change in any part of this insurance, nor estop the Insurers from asserting any right under the terms of this insurance. The terms of this insurance may be waived or changed only upon mutual agreement between the Insured and the Insurers evidenced by an endorsement issued to form a part hereof.
3. NOTICE AND PROOF OF LOSS
In the event of an Occurrence likely to result in or constitute a claim under this insurance, the Insured shall:
(a) give a notice of loss as soon as practicable to the Insurers. Such notice shall
contain sufficient particulars to identify the Insured and all reasonably obtainable information describing the circumstances of the Occurrence (the "Notice of Loss"). In no event shall the Notice of Loss be provided later than 30 days after the Insured has become aware of the Occurrence or Termination of Risk which ever the earlier, and
(b) in the event of a claim, file a proof of loss with the Insurers as soon as
practicable in such form and including such information as the Insurers may reasonably require and request (the "Proof of Loss"). In no event shall the Proof of Loss be filed more than 180 days following the Notice of Loss. The Proof of Loss shall state at a minimum the date, time and nature of the loss and the most probable cause of each Occurrence which results in a claim under this insurance. The Proof of Loss shall be signed by a duly authorised officer of the Insured and sworn. The Insurers shall accept, reject or request further details regarding any Proof of Loss filed by the Insured within 45 days of the receipt of such Proof of Loss. Should a request for further details be made, the Insured will use their reasonable best efforts to provide the Insurers with the information required to properly review the claim.
However, in the event the facts necessary to complete the Proof of Loss, including the extent of loss and the amount of loss claimed, are not fully available at the time the Proof of Loss is due as required herein and provided that Insurers' rights under this insurance, including but not limited to the benefits of salvage, are in no way reduced or jeopardized by such extension, the Insurers will grant an extension of the deadline to file the Proof of Loss, until such time as the necessary facts are fully available but not later than twenty four months after the date of Occurrence.
4. CLAIMS PAYMENT
Claims due under this insurance shall be paid within 30 days following agreement by the Insurers to the Proof of Loss.
12. TITLES
The titles of the various paragraphs of this insurance, and of any endorsements or supplemental agreements now or hereafter attached to the insurance, are inserted solely for convenience and shall not be deemed to limit or otherwise affect the terms contained in the paragraphs to which they relate.
13. INSPECTION AND AUDIT OF INFORMATION
The Insurers through their authorised representative shall be permitted to inspect the books and records of the Insured pertaining to the subject matter of this insurance at all reasonable times during the Period, and, if a Proof of Loss is filed pursuant to this insurance, for the longer of:
(a) 3 years after the expiration or termination of this insurance; or
(b) the time until the claim has been settled and a full and final release has been
Executed; or
(c) the time at which all salvage payments due under any claim settlement have
been made; or
(d) the time at which all subrogation action has been completed.
14. ASSIGNMENT
The Insurers will not be bound by any assignment of interest under this insurance unless the Insured obtains the written agreement from the Insurers prior to such assignment.
15. ABANDONMENT
In the event of a loss there can be no abandonment of any property to the Insurers unless the Insurers give their prior written consent.
16. OTHER INSURANCE
Any other valid insurance secured on behalf of the Insured which provides similar or equivalent coverage to that provided under this insurance, shall limit the obligations of the Insurers to the following extent: where a Proof of Loss is filed, then payment under this insurance shall be in the ratio that the Sum Insured under this insurance bears to the whole amount of all valid and collectible insurance, unless the Insurers have previously agreed that such additional coverage shall not be regarded as other insurance for the purposes of this insurance. The terms and conditions of any other insurance secured by the Insured shall have no detrimental effect on the Insured's duties and obligations and the Insurer's rights and privileges under this insurance.
17. SALVAGE / POST LOSS ADJUSTMENT
(a) In the event of payment of a claim under this insurance, and if the Insured
and the Insurers later agree that subsequent events have reduced or eliminated the claim, the Insured shall return to the Insurers, within 60 days of such agreement, the difference between the original payment and the agreed upon reduced claim. Reasonable sums expended by the Insured as a result of making good the loss shall be included in the agreed claim.
(b) Following payment for Partial Loss by the Insurers, if the Insured
subsequently derives revenues (or equivalent goods or services) from the failed portion of a Spacecraft for which a claim has been paid, the Insurers will be entitled to the recovery of such a payment by the return of 75% of the net revenues directly derived from the Spacecraft (or equivalent goods or services) earned on said failed portion of the Spacecraft. The net revenues are defined as the gross revenues less all expenses incurred by the Insured
equivalent goods or services for use of the Spacecraft or RF Channel(s) for the Insured and such use shall not reduce indemnity for loss hereunder to the Insured.
19. ACCESS TO TECHNICAL INFORMATION
Upon specific written request, the Insured shall use its reasonable best efforts to provide the Insurers with all available information relating to the subject matter of this insurance.
In the event that Notice of Loss is filed under this insurance, the Insured will, at the Insurers' request, do the following:
(a) conduct review sessions with the Insurers to discuss any issues relating to
the loss, and
(b) use reasonable best efforts to secure the Insurers access to all information
used on or resulting from any investigation or review of the causes or effects of the loss or failure, and
(c) make available for inspection and copying all information necessary to
establish the loss, or the amounts of any salvage, and verify the accounting methods employed to compute any return of recovery of loss payment.
To the extent that any information requested by the Insurers in accordance with this Condition 19 is subject to non-disclosure or proprietary information provisions, restrictions due to export control laws, regulations and/or administrative acts or other restrictions, the Insured shall use reasonable best efforts to obtain such information in a timely manner. The Insured will exercise its reasonable best efforts to cause the Satellite manufacturer and/or the launch provider to apply for all necessary licenses/approvals in order that the Insured can comply with all requirements and obligations under this insurance to provide such information or materials and respond to questions or requests for information. Inability of the Insured to provide such information or delays in the timely delivery of any data or information required under this insurance due to the Government approval process shall not prejudice the Insured's nor the Insurers' rights under this insurance. In such a case, the Insurers and the Insured shall negotiate in good faith to establish an alternative method to proceed under the insurance within a reasonable period of time.
20. MATERIAL CHANGES
If the Insured
(a) waives or modifies any of the material technical specifications or
requirements of the Contract including but not limited to the Spacecraft
Performance Specifications, or
(b) materially changes, revises or amends the Contract; or
(c) becomes aware of a material change in any of the Underwriting Information
previously provided to the Insurers;
then the Insured shall promptly notify the Insurers of any such event ("Change"). The Insurers shall in turn promptly notify the Insured if such Change constitutes, in the Insurers' reasonable judgment, a material increase in risk of loss or change in insurable interest under the insurance (a "Material Change"). The Insurers shall have the right to renegotiate the terms of the insurance specifically affected by the Material Change. If Insurers do not notify the Insured in writing that they deem a Change to be a Material Change within 10 business days after receipt of notification of Change, the Insurers shall be deemed to have accepted the Change as not being a Material Change.
EXCLUSIONS
This insurance does not apply to loss, damage or failure caused by or resulting from:
1. War, invasion, hostile or warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or expected attack
by:
(a) any government or sovereign power (de jure or de facto); or
(b) any authority maintaining or using a military, naval or air force; or
(c) a military, naval, or air force; or
(d) any agent of any such government, power, authority or force.
2. Any anti-satellite device, or device employing atomic or nuclear fission and/or fusion,
or device employing laser or directed energy beams.
3. Insurrection, strikes, labor disturbances, riots, civil commotion, rebellion, revolution,
civil war, usurpation, or action taken by a government authority in hindering, combating or defending against such an occurrence, whether there be declaration of war or not.
4. Confiscation, nationalization, seizure, restraint, detention, appropriation, requisition
for title or use by or under the order of any government or governmental authority or agent (whether secret or otherwise and/or whether civil, military or de facto) or public or local authority or agency.
5. Nuclear reaction, nuclear radiation, or radioactive contamination of any nature,
whether such loss or damage be direct or indirect, except for radiation naturally occurring in the space environment.
6. Electromagnetic or radio frequency interference, except for physical damage to the
Satellite directly resulting from such interference.
7. Wilful or intentional acts of the Named Insured designed to cause loss or failure of the
Satellite, however, this exclusion does not apply to actions of any employees, contractors or subcontractors of the Named Insured while acting outside their authorized responsibilities.
8. Any act of one or more persons, whether or not agents of a sovereign power, for
political or terrorist purposes and whether the loss, damage or failure resulting therefrom is accidental or intentional.
9. Loss of revenue, incidental damages, consequential loss or extra expenses, other
than expressly covered under this insurance.
10. Third party liability.
IN-ORBIT REINSURANCE
DECLARATIONS
1. INSURED
2. INSURED'S ADDRESS
LOSS PAYEE
Loss under this insurance shall be adjusted with the Insured and any claim payable to
the Insured or to the Insured's order (the "Loss Payee").
4. PERIOD
From 1st September 2010 until 1st September 2011 both dates at 00:01 a.m. local
time at the Address of the Insured (the "Period").
5. INSURED'S ACTIVITIES
Establishing, maintaining and operating a commercial satellite telecommunications system and related services.
6. SUM INSURED
The Sum Insured under this insurance is USD 148,000,000 (the "Sum Insured").
7. ATTACHMENT OF RISK
Risk of loss under this insurance attaches at commencement of the Period
("Attachment of Risk").
8. TERMINATION OF RISK
Risk of loss under this insurance shall terminate upon the earliest of the following:
(a) expiry of the Period; or
(b) when agreed claims equal the Sum Insured; or
(c) when the Spacecraft is agreed to be a Total Loss or Constructive Total Loss.
("Termination of Risk").
9. PREMIUM
As consideration for the coverage provided by the Insurers to the Insured under this Policy, the Insured shall pay to the Insurers a premium as per the attached Schedule
A.
IN ORBIT - SATELLITE (SPACE) INSURANCE - wording
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