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EXHIBIT 10.64
June 10, 1997
Mr. R. Xxxx Xxxxxxxx
Vice President & General Manager
Space & Defense Systems
XxXxxxxxx Xxxxxxx Aerospace Group
XxXxxxxxx Xxxxxxx Corporation
0000 Xxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000-0000
Subject: Memorandum of Agreement
Dear Xxxx:
This is to confirm in writing our mutual understanding, reached by Xx. Xxxxxxxx,
the undersigned and you in previous meetings regarding the subject, that the
Memorandum of Agreement between XxXxxxxxx Xxxxxxx Corporation and SPACEHAB,
Incorporated dated 28, July, 1995 is null and void and of no effect. Please
confirm this understanding by returning an executed copy of this letter at your
convenience.
Sincerely,
/s/ Xxxxxxx X. Xxx Acknowledged &
---------------------------- Approved By: /s/ R. Xxxx Xxxxxxxx
Xxxxxxx X. Xxx ------------------------
President R. Xxxx Xxxxxxxx
Date: 20 January 1997
CML/jam
Enclosure(s)
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MEMORANDUM of
AGREEMENT
between
XxXXXXXXX XXXXXXX
CORPORATION
and
SPACEHAB
INCORPORATED
28 July
1995
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MEMORANDUM OF AGREEMENT
This Agreement concurred upon on July 14,1995, is between XxXxxxxxx
Xxxxxxx Corporation ("MDC"), acting through its XxXxxxxxx Xxxxxxx Aerospace
-Huntsville component, with an address at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000-0000, and SPACEHAB, Inc. ("SHI") with an address at 0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000-0000, collectively "the Parties".
WHEREAS:
A. SHI has entered into contracts with NASA, hereinafter referred to as
"Use Contracts," for the lease and operational services of pressurized habitable
Shuttle Middeck Augmentation modules. MDC is SPACEHAB's sole subcontractor on
such activity.
B. The Use Contracts have established the following four major
marketing assets for SHI and MDC:
1. Low cost, reconfigurable modules for a variety of space
business applications;
2. Valuable integration and operational services experience and
knowledge base;
3. A successful commercialization example and;
4. A powerful alliance between SHI and MDC for extensive
penetration of the domestic and international Space Industry
Market and potentially other technology markets.
C. By leveraging on the Use Contract success and experience, the
parties can create many new space business opportunities in the future.
D. SHI is an entrepreneurial commercial firm with international
strategic partners pursuing a strategy of excellent service and of providing
private investment to incrementally displace public investment funding and,
therefore, engaged in the marketing, commercial development, financing,
conceptual design, operation, and leasing of crew-tended space systems.
E. MDC is an aerospace corporation engaged in providing the systems
management, design, development, integration, production and operation of
crewtended space systems, including those for SHI.
THEREFORE:
The Parties intending to be legally bound agree:
1. During the term of this agreement SHI will grant to MDC a right of
first refusal to perform as prime contractor to SHI for the commercial provision
and support of all crew-tended and support space systems including, but not
limited to, the following, should they become SHI contracts:
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i. CMAM-type science missions;
ii. International Space Station Alpha (hereinafter referred to as
ISSA) Phase 1 docking mission with the Mir Space Station;
iii. ISSA Centrifuge/Life Sciences Module; and,
iv. All production, integration, and operation work to provide
crew tended space systems and all logistics and operation of
the ISSA or Shuttle or derivatives thereof.
(a) MDC intends to support SHI in such business pursuits as described
in items 1 (i) to 1 (iv) above in its traditional role and relationship with
SHI, and will continue the nature of past relationships in the pursuit and
conduct of the scope of business as identified. Where MDC elects to pursue these
business opportunities as a prime, MDC will make reasonable best efforts to
structure and present opportunities to customers utilizing SHI and its
commercial service approach to satisfying customer's requirements.
(b) MDC may exercise its right of first refusal hereunder for the
specific project(s) covered by the right of first refusal by delivery of a
notice of acceptance to SHI within 30 days of SHl's notice of the right of first
refusal to MDC.
(c) SHI will not contract with any party other than MDC for the
performance of all or any of the work described in items 1 (i) to 1 (iv) above
unless MDC has failed to exercise its right of first refusal within 30 days of
the notice of said right, including an outline of reasonable principal terms,
given by SHI to MDC. In the event that MDC does not exercise its right of first
refusal within said time period, SHI shall be entitled to contract with one or
more parties on terms no more favorable than those offered MDC, but only for the
project(s) or product(s) covered by the right of first refusal written notice
delivered to MDC.
(d) Notwithstanding an exercise of the right of first refusal by MDC,
for any individual proposal effort should the customer direct in writing,
despite the reasonable efforts of the parties to convince the customer of the
benefit of the teaming arrangement, a different contractor and subcontractor
relationship, then SHI will not be obligated to honor MDC's right of first
refusal for said proposal effort.
2. The Parties recognize that third parties may be brought into
association from time to time in order to maximize international and/or domestic
funding, support, acceptability, and competitiveness. The parties will perform
this necessary accretion of associates cooperatively. In those cases where MDC
exercises its right of first refusal the contractual relationship of the third
party will be as sub contractor to MDC. The parties recognize that from time to
time a direct contract between SHI and a third party may be necessary in order
to maximize international and/or domestic funding, support, acceptability, and
competitiveness. In those cases where the parties wish to proceed with a direct
contract with a third party each party agrees to negotiate a mutually acceptable
third party arrangement.
3. This Agreement shall terminate automatically upon the earliest of
the following events to occur: (i) the expiration of 10 years following the date
hereof, (ii) the debarment or suspension of either party by the Government,
(iii) mutual agreement in writing by the parties. This agreement may be extended
for 10 additional years in 5 year increments by mutual agreement of the parties
in writing.
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4. Subject to Lloyd's concurrence, MDC agrees to amend the Amended and
Restated Credit Agreement dated December 29, 1993, signed by the Parties to
extend the Revolving Credit Commitment Termination and Final Maturity dates
until December 31, 1998. The Revolving Credit Commitment (RCC) amount will be
reduced to $6 million as of January 1, 1996.
5. This Agreement shall not be assignable by either party without the
prior written consent of the other and shall not be modified by any trade usage
or prior course of dealing between the parties or in any way other than by a
writing signed by the party to be charged therewith. This Agreement shall be
governed by the laws of Missouri.
6. This Agreement shall not constitute, create, give effect to or
otherwise imply a joint venture, pooling arrangement, partnership, or formal
business organization of any kind. The rights and obligations of the parties
shall be limited to these expressly set forth herein. Nothing herein shall be
construed as providing for the sharing of profit or loss arising out of the
efforts of either or both parties. Neither party shall be liable to the other
for any of the costs, expenses, risks or liabilities arising out of the other's
efforts in connection with the performance of this Agreement, except to the
extent provided for under any subcontract contemplated herein.
7. Either Party by affixing an appropriate legend may identify any
documented information furnished by it to the other party during the period of
this agreement as the proprietary information of the furnishing party. The
receiving party shall not use the identified information for any purpose other
than the performance of the agreed tasks and shall not, without the written
approval of the other party, disclose the identified information to others,
except that this limitation on use or disclosure shall not apply to (i)
information that the receiving party can prove was already known to it or
subsequently becomes known to it from a source other than the furnishing party,
(ii) information that has fallen into the public domain other than through
disclosure by the receiving party, (iii) an inadvertent disclosure by the
receiving party that occurs despite its exercise of reasonable diligence to
prevent such disclosure, (iv) use of disclosure that occurs later than five (5)
years after the date of this agreement, or (v) any disclosure by either party to
NASA for NASA'a use under contract. Upon any termination of this Agreement, each
party at the request of the other shall return to the other all documents
reflecting information identified by the other as its proprietary information.
8. Any invention made by the parties jointly during performance of
precontract proposal activities where the parties are each responsible for their
own proposal costs shall be their joint property and they shall share equally in
the cost of obtaining patent protection in the U. S. and such foreign countries
as may be agreed. Neither party shall license any such joint invention without
the written approval of the other party.
9. Neither party shall make any news releases about or disclose the
contents of the Agreement without prior written consent of the other party
except as may be required by law.
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10. Any notice, consent, demand, or request required or permitted by
this Agreement shall be in writing, and shall be deemed to have been
sufficiently given when personally delivered or received by confirmed telephonic
facsimile (FAX) or deposited in the United States registered mail, return
receipt requested, and addressed as follows:
For SHI: For MDC:
M. E. Xxxxxxx X. X. Xxxxxxx
C. F. O. Director, Business Management
Spacehab, Inc. XxXxxxxxx Xxxxxxx Aerospace - Huntsville
0000 Xxxxxxxxx Xxxxx Xxxxxxx 000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
11. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties.
XXXXXXXX.XXX, XxXxxxxxx Xxxxxxx Corporation
By By
Xxxxxxx X. Xxxx X. X. Xxxxxxx
President and CEO Director of Contracts and Pricing
SPACEHAB, Inc. XxXxxxxxx Xxxxxxx Aerospace
