By Orbital Sample Clauses

By Orbital if Spar has not executed the voting agreement and affiliate agreements, in substantially the forms attached as Exhibits 7.1(h) and 6.2.4(b), respectively, by September 6, 1995. In the event of both (i) a termination by EarthWatch, in whole or in part, of its agreement with MDA pursuant to which MDA is to build a portion of EarthWatch's image data archival and processing facility, which termination was solely as a result of the public announcement of MDA's and Orbital's agreement to consummate the Arrangement, and (ii) a termination of this Agreement because of (a) the failure to satisfy the conditions precedent to Closing set forth in Section 6.1.3 or Section 6.2.7, or (b) either party has exercised its right to terminate pursuant to paragraph (f) or (g) of this Section 7.1; then Orbital shall (x) use all commercially reasonable efforts to notify MDA as soon as practicable at any time Orbital (or any entity that was a Subsidiary of Orbital on July 31, 1995) has determined to solicit third party bids for the construction of satellite ground stations and (y) afford MDA the opportunity to participate in such bidding; provided, however, such actions would not be required if to do so would result in the breach of a currently existing contract or if otherwise prohibited by any applicable rules or regulations, including, but not limited to, rules or regulations governing bidding procedures with respect to Government Contracts and export controls; and provided further that this obligation to provide notice and afford MDA an opportunity to bid shall terminate three years from the earlier of (A) the date of termination of such EarthWatch agreement and (B) December 31, 1995. In the event of termination and abandonment under this Section 7.1, this Agreement shall forthwith become null and void and there shall be no liability on the part of any of MDA, Orbital or Acquisition or any of their respective officers and directors; provided, however, that the provisions of the immediately preceding sentence, Section 7.3 and Section 7.4 hereof shall survive any termination of this Agreement as provided therein and in the event of a termination pursuant to Section 7.1(b)(i) the breaching party shall be liable for all out-of-pocket costs and expenses incurred in connection with the transactions contemplated hereby.
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