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EXHIBIT 10.2
AMENDED AND RESTATED
ORBIMAGE SYSTEM PROCUREMENT AGREEMENT
This Orbimage System Procurement Agreement (this "Agreement") is made
and entered into as of the 26th day of February, 1998 between Orbital Imaging
Corporation, a Delaware corporation ("OIC"), and Orbital Sciences Corporation, a
Delaware Corporation ("Orbital").
WITNESSETH
WHEREAS, the parties have previously entered into the OIC System
Procurement Agreement dated as of November 18, 1996, as amended on May 8, 1997,
December 31, 1997 and February 25, 1998; and
WHEREAS, the parties desire to amend and restate the OIC System
Procurement Agreement to reflect all the amendments thereto (including amended
or restated attachments thereto)
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Except as otherwise specifically defined herein, capitalized terms
shall have the meanings ascribed to such terms in Appendix A attached hereto.
[Confidential Treatment] means that certain Confidential information
has been deleted from this document and filed separately with the Securities
and Exchange Commission.
ARTICLE 2.
SCOPE OF WORK
Consistent with the terms and conditions set forth herein, Orbital
shall furnish the management, labor, facilities, personnel and materials
required for the performance of the following work (collectively, the "Work"):
Section 2.1. Orbital shall provide the OrbView-1 System as described in
OrbView-1 System Statement of Work (Exhibit A).
Section 2.2. Orbital shall provide and OrbView-2 license as described
in OrbView-2 License Agreement (Exhibit B).
Section 2.3. OrbView-3 System Design, Development and Integration.
Orbital shall have responsibility for overall design, development, and
integration of the OrbView-3 System in accordance with Exhibit C, OrbView
High Resolution Imagery System Mission Requirements Document and applicable
Statements of Work.
Section 2.3.1. Provision of OrbView-3 Satellite. Orbital shall
design, construct and deliver the OrbView-3 Satellite in accordance
with the OrbView-3 Mission Requirements Document (Exhibit C, Part 1A)
and Statement of Work (Exhibit C, Part 1B).
Section 2.3.2. Provision of Launch. Orbital shall launch the
OrbView-3 Satellite using a Launch Vehicle in accordance with the
Launch Vehicle Statement of
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Work and Specifications (Exhibit C, Part 2).
Section 2.4. Provision of OrbView Command and Control Segment and
OrbView-3 Data Processing Segment. Orbital shall design, construct and deliver
the OrbView-3 and OrbView-4 Command and Control Segment ("CCS") and the Joint
OrbView-3 and OrbView-4 Data Processing Segment ("DPS") in accordance with the
Joint OrbView-3 and OrbView-4 Mission Requirements Document (Exhibit C, Part
1A), Statement of Work (Exhibit C, Part 1B) and the Joint OrbView-3 and
OrbView-4 Command and Control and Data Processing and Distribution Requirements
Specifications (Exhibit D, Part 1). Orbital shall design, construct and deliver
the OrbView-1 and OrbView-2 Command and Control Segment in accordance with the
OrbView-1 and OrbView-2 Command and Control Statement of Work (Exhibit D, Part
2).
Section 2.5. OrbView-4 System Design, Development and Integration.
Orbital shall have responsibility for overall design, development, and
integration of the OrbView-4 System in accordance with Exhibit C, OrbView High
Resolution Imagery System Mission Requirements Document and applicable Statement
of Work.
Section 2.5.1. Provision of OrbView-4 Satellite. Orbital shall
design, construct and deliver the OrbView-4 Satellite in accordance
with the OrbView High Resolution Imagery System Mission Requirements
Document (Exhibit C, Part 1A) and Statement of Work (Exhibit C,
Part 1B).
Section 2.5.2. Provision of Launch. Orbital shall launch the
OrbView-4 Satellite using a Launch Vehicle to be determined in
accordance with the Launch Vehicle Statement of Work and Specifications
(Exhibit C, Part 2). Any launch contract for OrbView-4, and subsequent
major amendments thereto affecting price or schedule, shall be subject
to OIC's prior approval, which shall not be unreasonably withheld.
Section 2.6. Insurance. Orbital shall procure launch, satellite check
out and/or on-orbit operation insurance, at OIC's expense, as requested by OIC,
subject to availability of such insurance and OIC's agreement to the price,
terms and conditions of such insurance. Orbital shall maintain, at its expense,
insurance coverage of the type and level that is customarily carried by entities
engaged in similar businesses to Orbital's, to cover losses from damage to
personal property, such as the OrbView-3 and OrbView-4 satellites, until title
has passed to ORBIMAGE.
ARTICLE 3.
CONSIDERATION
Section 3.1. The price for the work hereunder (collectively, the
"Price") is as follows:
CLIN FIXED PRICE
0001 OrbView-1 System (2.1) $[Confidential Treatment]
0002 OrbView-2 License (2.2) [Confidential Treatment]
0003 OrbView-3 Satellite and Launch (2.3.1, 2.3.2) [Confidential Treatment]
0004 Data Processing Segment and Command and Control Segment (2.4) [Confidential Treatment]
0005 OrbView-4 Satellite and Launch (2.5.1, 2.5.2)* [Confidential Treatment]
TOTAL FIXED PRICE $262,600,000
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CLIN FIXED PRICE
0006 Insurance [Confidential Treatment]
0007 OrbView-4 Launch Vehicle costs in excess of $[Confidential Treatment] [Confidential Treatment]
* If the launch for the OrbView-4 satellite costs less than
$[Confidential Treatment], then the fixed price shall be adjusted downward
accordingly.
Section 3.2. Taxes. (a) The Price does not include any federal, state
or local sales, use or excise taxes levied upon or measured by the sale, the
sales price, or the use of the items to be delivered or services required to be
performed hereunder. Orbital shall list separately on its invoice any such tax
lawfully applicable to the items to be delivered or services required to be
performed hereunder and payable by OIC. The Price shall not, however, include
any taxes on property owned by the United States Government, or any U.S. or
foreign federal, state or local income taxes imposed on Orbital.
(b) In cases where Orbital and/or OIC are wholly or partially exempt
from such taxes and duties or otherwise entitled to relief by way of protest,
refund claims, litigation or other proceedings, Orbital shall take all necessary
steps to facilitate such exemption or relief by:
(i) Using reasonable efforts to bring about the exemption or
relief before submitting the invoices to OIC; and
(ii) Complying with all formalities necessary to enable OIC to
claim reimbursement with respect to taxes and duties that have been
paid. For this purpose, Orbital shall comply with the reasonable
instructions given to it by OIC and provide in due time the information
that OIC reasonably requires.
If any such tax is determined to be legally due from either Orbital or OIC, OIC
shall pay it separately. OIC shall pay, or reimburse Orbital for all
out-of-pocket expenses incurred in connection with the activities contemplated
by this Section 3.2.
ARTICLE 4.
[RESERVED]
ARTICLE 5.
PAYMENT TERMS AND INVOICING
Section 5.1 Monthly Payments Schedule for CLINs 0001 through 0005.
Exhibit F sets forth a Monthly Payment Schedule for CLINs 0001 through 0005.
No later than May 28, 1997, OIC shall remit to Orbital the aggregate amount of
$23,100,000 in payment for January through April 1997. Beginning at the end of
May 1997 and in accordance with Section 5.3 hereof, Orbital shall invoice OIC
for work performed and costs incurred each month and any amounts previously
invoiced and unpaid. OIC shall pay each invoice, provided, however, that the
amount payable by OIC shall not exceed the lesser of (a) the amount of such
invoice and (b) the sum of (i) the amount set forth in Exhibit F for the month
invoiced plus (ii) for each preceding month for which an invoice was submitted
in an amount less than the amount set forth in Exhibit F for such month, the
excess of such amount set forth in Exhibit F over the amount of the invoice
submitted for such month, but only to the
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extent not previously paid hereunder.
Section 5.2 CLIN 006. Payment for CLIN 006 shall be made after
negotiation of the final premium for each insurance policy and prior to the
premium due date. Orbital shall provide OIC with prompt notice of the amount of
such payments and the date on which such payments are due.
Section 5.3 Monthly Payment Schedule Invoices. Within 15 days after the
end of each month, Orbital shall submit certified invoices reflecting actual
incurred costs for the preceding month and any unpaid balance from prior months.
Orbital shall invoice OIC for payments due under CLIN 0007 as costs are incurred
by Orbital. OIC shall pay such invoices to the extent provided in Section 5.1
within 10 days from the date of receipt.
Section 5.4 Milestone Schedule Payments. Exhibit F also sets forth a
Milestone Schedule Payment for CLINs 0003 through 0005. Orbital shall invoice
OIC for the Milestones set forth in Exhibit F upon achieving such milestone.
Such invoices shall be paid within 10 days of receipt.
Section 5.5. On-Orbit Extended Performance Incentive. For both the
OrbView-3 and OrbView-4 Satellites, OIC agrees to pay Orbital an On-Orbit
Extended Performance Incentive at a fixed price of up to $1,000,000 per year per
satellite based on the level of satellite operation performance beyond the
contractual requirement of five (5) years. If in any year after the fifth year
the extended performance is for less than an entire additional year, the annual
incentive will be pro-rated for the number of days of extended operation. OIC
and Orbital shall negotiate in good faith the criteria for determining what
constitutes "satellite operation performance" for purposes of this Section 5.5.
If the parties are unable to agree on such criteria by the date three months
prior to the OrbView-3 Satellite launch, then either party shall have the right
to submit the issue for resolution by binding mediation.
ARTICLE 6.
WORK SCHEDULE AND DELIVERY
Section 6.1 Delivery.
(a) Delivery of OrbView- I System shall occur at the time of closing a
private financing contemplated by OIC.
(b) Delivery of OrbView-2 license shall occur at the time of closing a
private financing contemplated by OIC.
(c) Delivery of the OrbView-3 Satellite and Launch Vehicle shall occur
on separation of the Launch Vehicle from the carrier aircraft on the launch
date.
(d) Delivery of the OrbView Data Processing Segment required for
OrbView-3 shall coincide with the operational availability of the OrbView-3
Satellite. Delivery of the OrbView Data Processing Segment required for
OrbView-4 shall occur no later than ninety (90) days prior to the OrbView-4
Satellite's launch date.
(e) Delivery of Command and Control Segment shall be as follows:
(1) Completed work for the OrbView- I and OrbView-2 Systems
shall be delivered at the time of closing a private financing
contemplated by OIC.
(2) Remaining work for OrbView-2 shall be delivered in April,
1997.
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(3) OrbView Command and Control Segment for OrbView-3 and
OrbView-4 shall be delivered no later than sixty (60) days prior to
each satellite's respective launch date.
(f) Delivery of the OrbView-4 Satellite shall occur upon intentional
ignition of the launch vehicle.
Section 6.2 Schedule Delays. OIC and Orbital recognize that under this
Agreement Orbital is engaged in a technology development program involving the
design, development, construction, and integration of sophisticated and complex
technical systems, management of a number of different suppliers, and inherent
schedule uncertainties of space launch operations, and that there may be
schedule delays. Orbital shall provide OIC with regular reports of its
performance with respect to the applicable schedules and shall promptly notify
OIC when it reasonably expects that there are delays that are likely to cause a
material deviation from such schedules. In the event of such delays likely to
cause a material deviation, Orbital shall meet with OIC to discuss the cause of
such delays, the consequences of such delays and possible courses of action to
mitigate the effect of such delays. Each party shall bear its own costs with
respect to any delays, except as provided in Section 14.3.
ARTICLE 7.
ACCESS AND ACCEPTANCE
Section 7.1. Access. Subject to the receipt of any and all required
governmental approvals, OIC's authorized representatives shall have the right,
on a not-to-interfere basis, at all reasonable times during the performance of
this Agreement, to monitor the OrbView-3 Satellite and the OrbView-4 Satellite,
Command and Control and OrbView-3 and OrbView-4 Data Processing work in progress
at the plant(s) of Orbital.
Section 7.2. Progress Meetings. During the performance of this
Agreement, Orbital shall conduct reviews in accordance with the schedule
identified in the Statement of Work, as the case may be, at which Orbital shall
provide a review of milestones completed subsequent to the preceding review,
status of the upcoming milestones, and such other matters as may be mutually
agreed upon by the parties. Orbital shall also provide OIC at such meetings with
such reports and documentation as are required by such Statements of Work. The
parties may mutually agree to conduct additional interim meetings or reviews
from time to time with a mutually acceptable agenda. OIC shall determine its
appropriate manager and personnel to attend such meetings. Orbital shall be
represented by its applicable program manager and such other personnel as are
specifically required to support the particular presentation. All such meetings
shall be held at Orbital's facility in Germantown, Maryland or other mutually
agreeable location.
Section 7.3. Inspection and Acceptance, (a) Subject to the receipt of
any and all required governmental approvals, OIC's authorized representatives
shall promptly conduct a final inspection of the OrbView-3 Satellite and
OrbView-4 Satellite in accordance with the System Requirements Compliance
Document and End-Item Data Package (Exhibit G) or, at OIC's option, witness such
inspection by Orbital, and shall either approve it for launch in writing or
promptly notify Orbital in writing of the particulars of nonconformance with the
applicable Specifications. If no objections have been sent by OIC within fifteen
(15) days of the inspection, the OrbView-3 Satellite and OrbView-4 Satellite
shall be deemed to have received approval for launch by OIC. Corrections
required to render the OrbView-3 Satellite and OrbView-4 Satellite in
conformance with the applicable Specification shall be made by Orbital at its
cost. The decision as to how to make the corrections shall be at Orbital's sole
discretion and an item found to be non-conforming during or after testing
performed
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under this Agreement shall, at OIC's request and without charge to OIC, be
re-tested by Orbital after Orbital has remedied the nonconformance. OIC may be
assisted in all inspections by its consultants or advisors to the extent allowed
by law.
(b) The remaining work to be performed on the Command and Control
Segment as specified in Section 2.4 shall be accepted in accordance with a
Command and Control Segment Acceptance Test Procedure ("CCS ATP"), a copy of
which shall be attached to this Agreement upon completion as Schedule 7.3(b).
The CCS ATP shall take place at the facilities of Orbital at Dulles, Virginia.
Such CCS ATP shall be scheduled at a mutually convenient time within fifteen
(15) days after Orbital notifies OIC that the work on the Command and Control
Segment have been completed. Within thirty (30) days after completion of the CCS
ATP, OIC shall give written notice of any claim that the work on the Command and
Control does not conform to such Specifications. Corrections required to render
the Command and Control Segment in conformance with the applicable Specification
shall be made by Orbital at its cost. The decision as to how to make the
corrections shall be at Orbital's sole discretion and an item found to be
nonconforming during or after testing performed under this Agreement shall, at
OIC's request and without charge to OIC, be re-tested by Orbital after Orbital
has remedied the non-conformance. If OIC fails to participate in the CCS ATP or
to notify Orbital as required, OIC agrees that the Command and Control Segment
work shall be deemed accepted with all faults that inspection and test would
have revealed and to have waived all rights to revoke acceptance after such a
thirty-day period. OIC may be assisted in all inspections by its consultants or
advisors to the extent allowed by law. OIC and Orbital acknowledge that the CCS
ATP may be performed incrementally as certain portions of the CCS related to
OrbView-3 and OrbView-4, respectively, are completed. The timing for testing and
corrections, and the remedies set forth above, shall apply with respect to each
incremental test.
(c) The work to be performed on the OrbView-3 and OrbView-4 Data
Processing Segment as specified in Section 2.4 shall be accepted in accordance
with the OrbView-3 and OrbView-4 Data Processing Segment Acceptance Test
Procedure ("DPS ATP"), a copy of which shall be attached to this Agreement upon
completion as Schedule 7.3(c), The DPS ATP shall take place at the facilities of
Orbital at Dulles, Virginia. Such DPS ATP shall be scheduled at a mutually
convenient time within fifteen (15) days after Orbital notifies OIC that the
work on the OrbView-3 and OrbView-4 Data Processing Segment has been completed.
Within thirty (30) days after completion of the DPS ATP, OIC shall give written
notice of any claim that the work on the OrbView-3 and OrbView-4 Data Processing
Segment does not conform to such Specifications. Corrections required to render
the OrbView-3 and OrbView-4 Data Processing Segment in conformance with the
applicable Specification shall be made by Orbital at its cost. The decision as
to how to make the corrections shall be at Orbital's sole discretion and an item
found to be non-conforming during or after testing performed under this
Agreement shall, at OIC's request and without charge to OIC, be re-tested by
Orbital after Orbital has remedied the non-conformance. If OIC fails to
participate in the DPS ATP or to notify as required, OIC agrees that the
OrbView-3 and OrbView-4 Data Processing Segment work shall be deemed accepted
with all faults that inspection and test would have revealed and to have waived
all rights to revoke acceptance after such a thirty-day period. OIC may be
assisted in all inspections by its consultants or advisors to the extent allowed
by law. OIC and Orbital acknowledge that the DPS ATP may be performed
incrementally as certain portions of the DPS related to OrbView-3 and OrbView-4,
respectively, are completed. The timing for testing and corrections, and the
remedies set forth above, shall apply with respect to each incremental test.
(d) Failure to agree on any conformance to Specification shall be a
dispute and settled in accordance with Section 15.4.
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Section 7.4. On-Orbit Checkout. Orbital shall perform, at its expense,
on-orbit satellite checkout activities for OrbView-3 and OrbView-4 for a period
of thirty (30) days from launch.
ARTICLE 8.
TITLE AND RISK OF LOSS
Unless otherwise provided in this Agreement, title to, beneficial
ownership of, and right to possession to and risk of loss of or damage shall
pass to OIC, as follows:
(a) with respect to the OrbView-1 System, at the time of
closing a private financing contemplated by OIC;
(b) with respect to the OrbView-2 license, at the time of
closing a private financing contemplated by OIC;
(c) with respect to the OrbView-3 Satellite and Launch
Vehicle, upon separation of the Launch Vehicle from the carrier aircraft;
(d) with respect to the Command and Control Segment, for
completed work at the time of closing a private financing contemplated by OIC,
and for remaining work on OrbView-2 upon successful completion of the CCS ATP in
accordance with the provisions of Section 7.3(b); and
(e) with respect to the CCS and DPS for OrbView-3 and
OrbView-4, upon successful completion of the entire CCS ATP and DPS ATP for
OrbView-3 and OrbView-4, respectively, each in accordance with the provisions of
Section 7.3(b) and 7.3(c).
(f) with respect to OrbView-4 Satellite, risk of loss shall
occur and title shall pass upon intentional ignition of the launch vehicle.
ARTICLE 9.
CHANGES
Section 9.1. Changes. At any time and by written order, OIC may make
changes within the general scope of this Agreement in (a) the Specifications or
the Statement of Work, (b) the method of packing or shipment, (c) place or time
of delivery, or (d) the quantity or type of the items to be delivered or
services required to be performed hereunder.
Section 9.2. Adjustments to Agreement. (a) If any change causes an
increase or decrease in the Price, or in the time required for performance of
any part of the Work, whether or not directly changed by the order, OIC and
Orbital shall negotiate an equitable adjustment to such Price, delivery schedule
or other provision of this Agreement. Orbital shall perform the Work as changed
pending resolution of any negotiation under this Article 9, provided that OIC
provides funding for the efforts.
(b) Failure to agree to any adjustment shall be a dispute and
settled in accordance with Section 15.4.
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ARTICLE 10.
REPRESENTATIONS AND WARRANTIES
Section 10.1 Representations and Warranties. Orbital represents and
warrants that (a) it has, or will have, and it shall deliver to OIC at the time
of title passing pursuant to Article 8, sole and good legal and equitable title
to the items to be delivered pursuant to Article 2, free and clear of any and
all security interests, Liens, claims, charges, and encumbrances of any kind or
nature whatsoever, together with full power and lawful authority to sell,
deliver and perform the items to be delivered and to the extent applicable, the
services to be performed under Article 2, (b) subject to the provisions of
Section 10.2(a), the items to be delivered or to the extent applicable, the
services required to be performed shall be free from defects in design, material
and workmanship and shall operate and conform to the performance capabilities,
specifications, functions and other descriptions set forth in the Specifications
(as such Specifications may be modified from time to time), (c) neither the
delivery of the items nor the performance of the services required to be
performed by Orbital shall in any way constitute an infringement or other
violation of any U.S. copyright, trademark or patent or other validly registered
enforceable intellectual property right of any third party in the U.S. and
Canada, which Orbital represents are the only jurisdictions in which such
services are to be performed, and (d) the items to be delivered and the services
required to be performed hereunder shall be in compliance with all applicable
United States laws, rules and regulations.
Section 10.2. Remedies for Breach of Warranty and Warranty Period.
(a) Notwithstanding acceptance by OIC of the OrbView-3 and OrbView-4
Command and Control Segment or the OrbView-3 and OrbView-4 Data Processing
Segment, or any part thereof, or any provision of this Agreement, to the extent
permitted by the terms thereof, Orbital shall assign to OIC any warranties it
has with respect to any part of any of the Command and Control Segment and the
OrbView-3 and OrbView-4 Data Processing Segment from third parties. Orbital
warrants, with respect to the remaining work to be performed with respect to the
OrbView-2 Command and Control, the OrbView-3 and OrbView-4 Command and Control
work and for the OrbView-3 and OrbView-4 Data Processing Segment, such work, or
any part thereof, shall be free from defects in design, material and workmanship
and shall operate and conform to the performance capabilities, specifications,
functions and other descriptions set forth in the Specifications that relate
thereto. The applicable warranty periods shall be:
(i) for the segment of the OrbView Command and control Segment
relating to OrbView-3, for a period of one (1) year after the later to
occur of (A) title passing for such OrbView-3 segment or (B) launch of
the OrbView-3 Satellite.
(ii) for the segment of the OrbView Command and Control
Segment specifically related to OrbView-4, for a period of one (1) year
after the later to occur of (A) title passing for such OrbView-4
segment or (B) launch of the OrbView-4 Satellite.
(iii) for the segment of the OrbView Data Processing Segment
relating to OrbView-3, for a period of one (1) year after the later to
occur of (A) title passing for such OrbView-3 segment or (B) launch of
the OrbView-3 Satellite.
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(iv) for the segment of the OrbView Data Processing Segment
specifically related to OrbView-4, for a period of one (1) year after
the later to occur of (A) title passing for such OrbView-4 segment or
(B) launch of the OrbView-4 Satellite.
Orbital shall, at its expense, repair or replace such work, or
any part thereof, that do not conform to such warranty. Orbital's obligation
during the applicable Warranty Period shall be limited to repair or replacement
of the portion of the Command and Control Segment and the OrbView-3 and
OrbView-4 Data Processing Segment, or any part thereof, for which it has
provided a warranty. Notice of all claimed defects must be provided in writing
to Orbital within the applicable Warranty Period. The costs of inspection for
the Command and Control Segment and OrbView-3 and OrbView-4 Data Processing
Segment, or any part thereof, found to conform to the Specifications and
requirements of this Agreement and not defective shall be the responsibility of
OIC. Any product or part repaired or replaced shall be subject to a warranty
until the later of six months after repair or the original applicable warranty
period. The warranty set forth herein is OIC's exclusive remedy against Orbital
for any defect in the Command and Control Segment or the OrbView-3 and OrbView-4
Data Processing Segment, or any part thereof, and is in lieu of all other
warranties, express or implied.
(b) The Orbital warranty set forth herein shall not extend to
any of the Command and Control Segment or the OrbView-3 Data Processing Segment,
or any part thereof that is found, upon Orbital's or its subcontractor's
examination and not as a result of actions or omissions by Orbital or its
subcontractor, to have been (i) mishandled, misused, subjected to negligence,
accident or abuse, (ii) installed, operated or maintained contrary to Orbital's
specifications or instructions or otherwise used improperly, (iii) tampered with
or damaged, (iv) repaired or altered by anyone other than Orbital or its
subcontractors without Orbital's express advance written approval, or (v)
delivered to Orbital not in conformance with the notice requirements in the
warranty.
(c) Following the separation of the Launch Vehicle from the
carrier aircraft in the case of OrbView-3, and following intentional ignition of
the launch vehicle in the case of OrbView-4, OIC's sole remedy for launch
failure, defects, failure to conform with applicable Specifications or any other
requirements shall be limited to insurance proceeds.
Section 10.3. Limitation of Liability. (a) ORBITAL SHALL NOT BE LIABLE
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES RESULTING FROM THE USE
OF ANY OF THE GOODS OR SERVICES TO BE PROVIDED HEREUNDER, OTHER THAN THE
LIABILITY EXPRESSLY STATED HEREIN. THE WARRANTY SET FORTH HEREIN IS IN LIEU OF
ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) Regardless of fault, under no circumstances shall Orbital
be liable for any damages greater than Ten Million Dollars ($10,000,000) for any
claim made of any nature whatsoever, whether arising from patent indemnification
claims (see Section 10.4 below), Orbital's breach of contract, breach of express
or implied warranty, arising in tort, at law or in equity including any law
giving rise to a claim of strict liability or for any other cause.
Notwithstanding the foregoing, Orbital, its affiliates and each of their
directors, officers and employees shall not be responsible, or have any
liability, for the accuracy, incompleteness or timeliness of any advice or
service or any report, filing or other document that it or any of them provides,
prepares or assists in preparing except to the extent that any inaccuracy,
incompleteness or untimeliness arises from the gross negligence or willful
misconduct of Orbital, its affiliates and each of their directors, officers and
employees.
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Section 10.4 Patent Indemnification.
(a) In the event of a breach of the representation and warranty set
forth in Section 10. 1 (c) and subject to Section 10. 3 (b) above, Orbital
agrees to indemnify and hold Harmless OIC and its permitted successors and
assigns of its products from and against all loss, damages, claims, demands and
suits at law or in equity, for actual or alleged claims, demands and suits at
law or in equity, arising out of such breach or alleged breach.
(b) Notwithstanding the provisions of Subsections 10.1(c) and 10.4(a),
and subject to Section 10.3(b) OIC agrees that Orbital shall be relieved of its
obligations referenced in Subsection 10.4(a), unless OIC notifies Orbital in
writing promptly, but in any event, no later than sixty (60) days after OIC
becomes aware of any such claim, suit or proceeding and, at Orbital's expense,
co-operates with and gives Orbital all necessary information and assistance to
mitigate, settle and/or defend any such claim, suit or proceeding. In the event
that the actual liability of Orbital as a consequence of any loss, damages,
claim, demands and, suits or proceeding, when aggregated with any other
liability, exceeds Ten Million Dollars ($10,000,000) then OIC shall release
Orbital from any obligation for liability for copyright, trademark and patent
infringement in excess of such limit.
ARTICLE 11.
(a) HSI Contract. Pursuant to that certain contract between Orbital and
the U.S. Air Force/Philips Laboratory ("USAF") awarded August 5, 1997, (Contract
No. F29601-97-C-0110) (the "HSI Contract"), Orbital has, among other things,
undertaken to design a hyperspectral imaging sensor to be integrated onto the
OrbView-4 camera, to supply a mission data center and mobile ground station, and
to provide related work and services including certain post-launch support, all
as are further detailed in the HSI Contract. Notwithstanding anything in this
Agreement to the contrary, the terms and conditions of this Article 11 are
subject to all rights of the USAF pursuant to the HSI Contract, as it may be
amended from time to time.
(b) Orbital's Right to Modify OrbView-4. Orbital hereby agrees to pay
OIC for the right to modify the OrbView-4 Satellite in accordance with the HSI
Contract and to purchase from OIC hyperspectral data image sets that Orbital is
required to deliver under the HSI Contract. Except with the prior consent of
OIC, which shall not be unreasonably withheld, Orbital shall not make any use of
the hyperspectral data image sets delivered by OIC other than pursuant to the
HSI Contract.
(i) For the right to modify the OrbView-4 Satellite, Orbital
agrees to pay OIC a price equal to the Total Item Amounts (as modified
from time to time) set forth in XXXX 0000-0000, 0005-0006, 0008-0010,
0012-0013 of the HSI Contract (currently $31 million). The price also
shall include any award fees paid by USAF to Orbital under the HSI
Contract. Orbital shall pay OIC within ten (10) days of receiving any
payments under the HSI Contract.
(ii) For the purchase of data sets from OIC that Orbital is
required to deliver to USAF under the HSI Contract, Orbital agrees to
pay OIC a price equal to the price for Hyperspectral Data Set
deliverables set forth in the HSI Contract.
(c) OIC Procurement of HSI Modifications. OIC hereby agrees to procure
from Orbital modifications to the OrbView-4 Satellite to add hyperspectral
capability and the other work and
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services set forth as Orbital obligations under the HSI Contract (other than
data set delivery or as set forth in subparagraph (d) below).
(i) In exchange for this work and services, OIC agrees to pay
Orbital a price equal to the Total Item Amounts (as modified from time
to time) set forth in XXXX 0000-0000, 0005-0006, 0008-0010, 0012-0013
of the HSI Contract (currently $31 million). Items that are
cost-reimbursable or fixed under the HSI Contract will likewise be
cost-reimbursable or fixed to OIC. Payment for On-Orbit Support shall
be pursuant to subparagraph (d) below.
(ii) OIC shall pay Orbital within ten (10) days of invoice,
provided, however, that under no circumstances shall OIC be obligated
to pay Orbital under this Section 11 unless OIC has been paid pursuant
to subparagraph (b) above. Furthermore, under no circumstances shall
OIC be obligated to pay Orbital under this Section 11 an amount greater
than what OIC has been paid pursuant to subparagraph (b) above.
(d) On-Orbit Support. Orbital may subcontract with OIC to provide
on-orbit support to the USAF contemplated by the HSI Contract. Orbital shall pay
OIC for such on-orbit support a price equal to the relevant Total Item Amount
set forth in the HSI Contract. If OIC declines to perform such work, then
Orbital shall perform such work at no cost to OIC, provided, however, that OIC
shall grant Orbital reasonable access to the OrbView-4 Satellite and ground
segment to enable Orbital to perform such work.
(e) Hardware. Orbital agrees to deliver to OIC all hardware that is
produced or procured under the HSI Contract that is not otherwise deliverable to
USAF. Orbital shall also deliver one set of technical drawings, reports and
other documentation ("HSI Documentation") relating to such hardware. OIC shall
only be entitled to use such hardware and HSI Documentation for the purpose of
operating and maintaining the OrbView-4 Satellite system and any follow-on
systems that have similar hyperspectral capability.
(f) Software. To the extent permitted under the HSI Contract, the
Federal Acquisition Regulations and all applicable subcontracts, Orbital hereby
grants to OIC a perpetual, royalty free, non-exclusive, non-transferable license
to use the software, algorithms, and all other intellectual property (including
but not limited to any code) to be developed or purchased by Orbital under the
HSI Contract ("HSI Software"). To the extent Orbital has possession of source
code, object code, and any other code and documentation relating to the HSI
Software ("HSI Code") and is not otherwise prohibited from doing so, Orbital
shall deliver to OIC one copy of the HSI Code in a form sufficient to enable OIC
to operate and maintain the OrbView-4 Satellite and any follow-on systems that
have similar hyperspectral capability. OIC shall only be entitled to use the HSI
Software and HSI Code for the purpose of operating and maintaining the OrbView-4
Satellite and any follow-on systems that have similar hyperspectral capability.
Orbital shall use commercially reasonable efforts to cause its subcontracts to
permit sublicensing of HSI Software and HSI Code to OIC consistent with the
terms of this Section 11(f).
(g) OIC Obligations; Limitation of OIC Liability. OIC HAS NOT AND SHALL
NOT BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH
RESPECT TO THE HYPERSPECTRAL DATA SETS TO BE PROVIDED TO ORBITAL UNDER THIS
SECTION OF THE PROCUREMENT AGREEMENT. OIC SHALL NOT
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BE LIABLE TO ORBITAL FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING UNDER OR RELATING TO THE HSI CONTRACT.
(h) No Third Party Beneficiary Rights. Nothing herein shall be
construed to confer any third-party beneficiary rights in the USAF under this
Procurement Agreement. Orbital agrees to indemnify OIC for any damages arising
from any claims by the USAF against OIC relating to the HSI Contract.
(i) Rights on HSI Contract Termination. In the event the HSI Contract
is terminated for any reason, whether for convenience or otherwise, then OIC
shall have the same rights with respect to the HSI Work as are set forth in
Section 12.2 of the Procurement Agreement.
(j) Modifications to HSI Contract. Orbital shall consult with OIC
regarding changes to the HSI Contract and shall not agree to any material
modifications without OIC's prior written consent, which shall not be
unreasonably withheld.
(k) Standards of Conduct. OIC agrees to use commercially reasonable
efforts to supply Orbital with data sets required to be delivered under the HSI
Contract and to ensure that such data sets conform with the specifications under
the HSI Contract (unless such failure to conform is attributable to work done by
Orbital). Orbital shall employ commercially reasonable standards of business
conduct in the performance of its obligations under the HSI Contract.
ARTICLE 12.
TERMINATION
Section 12.1. Termination. OIC may, by written notice of termination to
Orbital, terminate this Agreement upon the failure of Orbital, except for
schedule delay which is addressed in Article 6.2, to comply in any material
respect with any of the provisions of this Agreement and to correct such
failure, within sixty (60) days from the date of Orbital's receipt thereof from
OIC's authorized representative, setting forth in detail OIC's basis for
termination of the Agreement.
Section 12.2. Upon Termination. (a) In the event of termination of this
Agreement by OIC, as provided for in Section 12.1:
(i) To the extent it is permitted to do so by law, regulation
and third parties, Orbital shall deliver to OIC all completed items to
be delivered under Article 2, work-in-progress, drawings, and other
technical data associated with the Work developed as part of the
performance of the completed milestones of this Agreement along with
appropriate licenses to the intellectual property embodied in all such
items (excluding any Launch Vehicle Launch data), drawings and other
technical data to use, make and have made such items (excluding any
Launch Vehicle Launch data), provided, that such data and licenses
shall be used exclusively for purposes related to the OrbView Systems
and shall be subject to appropriate confidentiality obligations;
(ii) Orbital shall take all commercially reasonable steps to
protect and preserve the property referred to in (i) above in the
possession of Orbital until delivery to OIC;
(iii) OIC shall pay to Orbital such portion of the Price and
Cost for all due monthly invoices; and
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(iv) At OIC's request and to the fullest extent permitted by
law, and subject to applicable laws and regulations, Orbital shall
transfer the approvals, permits, and licenses relating to the OrbView
System and held by Orbital.
(b) In the event OIC terminates this Agreement because of a material
breach by Orbital of its obligations herein, Orbital shall be liable to OIC for
reasonable cost of reprocurement, subject to the limitations provided in Section
10.3 hereof.
Section 12.3. Orbital Termination. Orbital may, by written notice to
OIC, terminate this Agreement upon the failure of OIC to make any payment in
accordance with the provisions of Article 5 hereof. Upon any such termination,
Orbital shall retain all work in process and all payments made to date, and
shall be entitled to recover termination liability costs including liability to
Vendors.
Section 12.4. Any disagreement under this provision, including
disagreements with respect to OIC's right to seek a termination and the
appropriate remedies for termination, shall be resolved in accordance with
Article 15.4 of this Agreement.
ARTICLE 13.
OWNERSHIP OF INTELLECTUAL PROPERTY; LICENSE
Section 13.1. As between the parties, all designs, inventions (whether
or not patented), technical data, drawings and/or confidential information
related to the Work, including without limitation the OrbView Satellites, Launch
Vehicle, the Command and Control Center Segment and the Data Processing Segment
are the exclusive property of Orbital and its subcontractors, except with
respect to work performed under the HSI Contract, including but not limited to
the hyperspectral sensor, mission data center and mobile ground station, which
rights are governed by Article 11 above. All rights, title and interest in and
to all underlying intellectual property relating to the Work shall remain
exclusively in Orbital or its subcontractors or both, as the case may be,
notwithstanding Orbital's disclosure of any information or delivery of any data
items to OIC or OIC's payment to Orbital for engineering or non-recurring
charges. OIC shall not use or disclose such information or property to any third
party without the prior written consent of Orbital. Title to all tools, test
equipment and facilities not furnished by OIC or specifically paid for by OIC
and delivered to OIC under this Agreement shall remain in Orbital or its
subcontractors. OIC agrees that it will not directly or through any third party
reverse engineer the Work.
Section 13.2. To the extent that computer software, source codes,
programming information and other related documentation relating to the Work,
other than the Launch Vehicle (the "Background Information") are not deliverable
data under this Agreement (or to the extent that they are deliverable data, that
no ownership or license rights are being transferred to OIC), Orbital , to the
extent that it has the right to do so, shall provide to OIC, on an as needed
basis, the right to access and copy such Background Information. To the extent
permitted by law, OIC shall have the right to use such Background Information to
support its analysis of the OrbView Systems, to develop alternative solutions
for technical problems affecting the operation and management of the OrbView
Systems and to design modifications to the Background Information but in any
event, not for any reprocurement. Subject to the foregoing, such modifications
shall be the sole property of OIC; and to the extent that OIC designs
modifications to the Background Information, it shall not have the right to
implement such modifications without the prior written consent of Orbital.
Section 13.3 Orbital hereby grants to OIC a perpetual, fully paid
license to use the intellectual property described in Section 13.1 and Section
13.2 (other than intellectual property
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associated with the launch vehicle) solely for the purpose of operating the
XxxXxxx-0, XxxXxxx-0, XxxXxxx-0 and OrbView-4 satellites and related ground
segments. OIC shall not copy or sell or otherwise transfer any of such
intellectual property.
ARTICLE 14.
SPECIAL PROVISIONS RELATING TO LAUNCH
Section 14.1. Cross-Waiver of Liability Relating to the Launch of the
Orbital OrbView-3 and OrbView-4 Satellites.
(a) In accordance with the applicable Department of
Transportation commercial launch license requirements, OIC agrees to enter into
an agreement with Orbital for a no-fault, no-subrogation, inter-participant
waiver of liability pursuant to which each shall not bring a claim against or
xxx the employees of the other, or any of them, or the United States Government,
and each party agrees to be responsible for and to absorb the financial and any
other consequences of any Property Damage it incurs or for any Bodily Injury to,
or Property Damage incurred by, its own employees resulting from activities
carried out under this Agreement, irrespective of whether such Bodily Injury or
Property Damage is caused by OIC, Orbital or by their contractors,
subcontractors, officers, directors, agents, servants and employees and the
Government and regardless of whether such Bodily Injury or Property Damage
arises through negligence or otherwise.
(b) OIC and Orbital shall each be responsible for such
insurance as they deem necessary to protect their respective property. Any
insurance carried in accordance with this Article 14 and any policy taken out in
substitution or replacement for any such policy shall provide that the insurers
shall waive any rights of subrogation against OIC, Orbital, and the United
States Government, as the case may be, and their contractors and subcontractors
at every tier.
(c) OIC and Orbital hereby agree to obtain a similar waiver in
the form set forth above from any party with which it enters into an agreement
relating to the activities (launch of the OrbView-3 and OrbView-4 Satellites)
contemplated by this Article, including without limitation, all of its
respective contractors, subcontractors and suppliers at every tier, and all
persons and entities to whom it assigns all or any part of its rights or
obligations under this Agreement.
(d) As used herein, "Bodily Injury" means bodily injury,
sickness, disease, disability, shock, mental anguish or mental injury sustained
by any person including death and damages for care and loss of services
resulting therefrom. "Property Damage" means injury to or destruction of
tangible property including the loss of use of such injured or destroyed
property.
Section 14.2. Flight Readiness Assessment. Orbital shall conduct a
Mission Readiness Review ("MRR") to be held subsequent to Orbital 's final
launch readiness review. At the MRR, Orbital shall summarize the status of its
expendable launch vehicle ("ELV") and launch support systems and attest to its
readiness to launch the mission. If after due consideration of the status of the
ELV, spacecraft, and other launch support systems, OIC does not agree that the
total mission is ready for launch, OIC shall retain the right to direct the
delay to the launch under the terms of Article 9 of this Agreement.
Section 14.3. Final Countdown Launch Authorization. OIC shall also be
polled in the final countdown procedure during status checks and shall retain
the right to concur or not to concur in the "GO" for launch. OIC's designated
representative shall be authorized to make such a decision. If OIC
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does not concur, it may declare a "HOLD" and delay the launch. If OIC declares a
HOLD and the cause for such HOLD cannot be shown to be attributable to Orbital
's performance, or to have been within its control or due to its fault or
negligence, Orbital shall receive an equitable adjustment to the Agreement Price
and schedule.
Section 14.4. Range Support. Orbital is responsible for the range
costs, interface, and all coordination with the government agencies that control
the launch ranges required to launch each payload.
ARTICLE 15.
MISCELLANEOUS
Section 15.1. Notices. (a) Except as otherwise specified herein, all
notices, requests and other communications required to be delivered to any party
hereunder shall be in writing (including any facsimile transmission or similar
writing), and shall be sent either by certified or registered mail, return
receipt requested, by telecopy or delivered in person addressed as follows:
(i) If to Orbital, to it at:
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(ii) If to OIC, to it at:
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxx
or to such other persons or addresses as any party may designate by written
notice to the others. Each such notice, request or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted and the
appropriate answerback is received, (ii) if given by reputable overnight
courier, one (1) business day after being delivered to such courier, (iii) if
given by certified mail (return receipt requested), three (3) business days
after being deposited in the mail with first class postage prepaid, or (iv) if
given by any other means, when received at the address specified in this Section
15.1.
Section 15.2. Force Majeure. Neither party shall be responsible for
failure or delay in performance or delivery if such failure or delay is the
result of an act of God, the public enemy, embargo, governmental act, fire,
accident, war, riot, strikes, inclement weather or other cause of a similar
nature that is beyond the control of the parties. In the event of such
occurrence, this Agreement shall be amended by mutual agreement to reflect an
extension in the period of performance and/or time of delivery. Failure to agree
on an equitable extension shall be considered a dispute and resolved in
accordance with Section 15.4 hereof.
Section 15.3. Licenses and Permits. Launch of the OrbView-3 and
OrbView-4 Satellites shall be accomplished under the Commercial Space Launch Act
(49 U.S.C. 2601, et seq.). OIC shall be responsible for obtaining the necessary
operating licenses, permits and clearances that may be
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required by the United States Department of Commerce, Federal Communications
Commission, or other governmental agency in order to operate as a satellite
services provider. Orbital agrees to provide OIC with such information as OIC
reasonable requests in order to obtain and comply with OIC's operating licenses.
Orbital shall be responsible for obtaining (or causing its subcontractors to
obtain) the necessary licenses, permits, and clearances, including but not
limited to launch licenses and export licenses that may be required by the
United States Department of Transportation or other governmental agency in order
to operate as a launch contractor and to perform in accordance with its
obligations under the Agreement.
Section 15.4. Resolution of Disputes. (a) Any controversy or claim that
may arise under, out of, in connection with or relating to this Agreement or any
breach hereof, shall be submitted to a representative management panel of OIC
and Orbital. Each of OIC and Orbital may appoint up to two (2) individuals to
such panel. Such appointments shall be made within ten (10) days of the receipt
by the appointing party of notice of the existence of such controversy or claim.
The unanimous decision and agreement of such panel shall resolve the controversy
or claim. If the panel is unable to resolve such matter within thirty (30) days
of the submission of such controversy or claim to such panel, it shall be
brought before the Presidents of OIC and Orbital for final resolution. If such
individuals are unable to resolve the matter within thirty (30) days of the
submission of such controversy or claim to such individuals by way of unanimous
decision, either party may remove the controversy or claim for arbitration in
accordance with Section 15.4(b).
(b) Any controversy or claim that is not resolved under
Section 15.4(a) shall be settled by final and binding arbitration in Washington,
D.C., in accordance with the then existing United States domestic rules of the
American Arbitration Association (the "AAA") (to the extent not modified by this
Section 15.4). In the event that more than one claim or controversy arises under
this Agreement, such claims or controversies may be consolidated in a single
arbitral proceeding. The arbitral tribunal shall be composed of three (3)
neutral arbitrators, selected pursuant to the rules, who are expert in the
subject matter of the dispute. Judgment upon any award rendered by the
arbitrators may be entered into any court having jurisdiction or application may
be made for judicial acceptance of the award and an order of enforcement, as the
case may be. The parties agree that if it becomes necessary for any party to
enforce an arbitral award by a legal action or additional arbitration or
judicial methods, the party against whom enforcement is sought shall pay all
reasonable costs and attorneys' fees incurred by the party seeking to enforce
the award.
Section 15.5. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Virginia without
giving effect to the provisions, policies or principles thereof relating to
choice or conflict of laws.
Section 15.6. Binding Effect, Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
successors and permitted assigns. Neither this Agreement nor any interest or
obligations hereunder shall be assigned or transferred to any person without the
prior written consent of the other party, provided that any party may assign
this Agreement and its interest and obligations hereunder to any wholly owned
subsidiary of such party, and provided that Orbital may assign its right to
receive payments under this Agreement to a commercial lender to the extent such
payments are collateral for borrowings by Orbital.
Section 15.7. Governing Agreements. To the extent there is an
inconsistency between the Procurement Agreement and the HSI Contract, the HSI
Contract shall govern.
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Section 15.8. Order of Precedence. Inconsistencies between or among
Articles of Agreements and/or any attachment shall be resolved in the following
order of precedence:
(a) Article I through Article 15 of this Agreement;
(b) Mission Requirements Document;
(c) Statements of Work;
(d) Specifications;
Section 15.9. Export Regulations. OIC acknowledges that if goods or
technical data purchased, provided or produced hereunder are to be exported,
they are subject to applicable U.S. Commerce and/or State Department export
regulations. OIC accepts full responsibility for and agrees to comply fully with
such regulations, and shall request Orbital to obtain export licenses and
re-export permission, at OIC's expense.
Section 15.10. Counterparts. This Agreement may be executed in any
number of counterparts of the signature pages, each of which shall be considered
an original, but all of which together shall constitute one and the same
instrument.
Section 15.11. Headings. This section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
Section 15.12. Amendment, Waiver. Except as provided otherwise herein,
this Agreement may not be amended nor may any rights hereunder be waived except
by an instrument in writing signed by the parties hereto.
ENTIRE AGREEMENT, this agreement and all attachments (which are hereby
made part of this Agreement) contain the entire understanding between Orbital
and OIC and supersede all prior written and oral understandings relating to the
subject hereof
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
ORBITAL SCIENCES CORPORATION (ORBITAL)
By: __________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Finance and
Chief Financial Officer
ORBITAL IMAGING CORPORATION (OIC)
By: __________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
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LIST OF EXHIBITS AND SCHEDULES
Appendixes
Appendix A Defined Terms
Exhibits
Exhibit A OrbView-1 System Description
Exhibit B OrbView-2 License Agreement (Replaced by Amendment Xx. 0
Xxxxxxx X XxxXxxx-0 xxx XxxXxxx-0 Missions Requirement Document
(Part IA), OrbView-3 and OrbView-4 Statement of Work
(Part 1B) and Launch Vehicle Statement of Work and
Specifications (Part 2)
Exhibit D OrbView-3 and OrbView-4 Command and Control and Data
Processing and Distribution Requirements Specifications
(Part 1) and OrbView-1 and OrbView-2 Command and Control
Statements of Work (Part 2)
Exhibit E Long Lead Spares Statement of Work
Exhibit F Payment Schedule
To Be Incorporated
Exhibit G System Requirements Compliance Department and End-Item Data
Package Schedules To Be Incorporated
Schedule 7.3(b) Command and Control Segment Acceptance Test Procedure
Schedule 7.3(c) Data Processing Segment Acceptance Test Procedure
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EXHIBIT F
PAYMENT SCHEDULE
($ IN THOUSANDS)
[Confidential Treatment]
20
