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Exhibit 10.6
AMENDED AND RESTATED DISTRIBUTOR LICENSE AGREEMENT
BETWEEN
ORBITAL IMAGING CORPORATION
AND
SAMSUNG AEROSPACE INDUSTRIES, LTD.
This Restated Distributor License Agreement (the "Agreement")
is made and entered into this _______ day of November, 1996, between Orbital
Imaging Corporation ("ORBIMAGE"), whose principal place of business is ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇, and Samsung Aerospace
Industries, Ltd.. (the "Licensee"), whose principal place of business is ▇▇▇,
▇-▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇. This Agreement amends and restates the
Distributor License Agreement between ORBIMAGE and the Licensee dated December
1, 1995 (the "Original Agreement").
WHEREAS, ORBIMAGE intends to construct and operate a
satellite-based, low-Earth orbit, high-resolution remote sensing system;
WHEREAS, ORBIMAGE intends to market satellite-based,
high-resolution imagery services using the OrbView-3 System in the United States
through ORBIMAGE and elsewhere in the world through distributors subject to
distributor license agreements; and
WHEREAS, ORBIMAGE and Licensee wish to amend and restate the
Original Agreement in its entirety and enter into this Agreement setting forth
their respective obligations and understanding relating to the delivery and
distribution of high-resolution imagery products using the OrbView-3 System (as
defined below).
NOW, THEREFORE, the parties agree as follows:
1. EFFECTIVE DATE OF AGREEMENT
This Agreement shall be effective as of December 1, 1995.
2. DEFINITIONS:
a. AUTHORIZED CUSTOMER:
Throughout the term of this Agreement, any person other than
(i) an entity listed on the U.S. State Department List of terrorist countries or
a citizen thereof or (ii) any other person who under U.S. laws or regulations is
prohibited from receiving OrbView-3 System imagery.
b. ORBVIEW-3 SYSTEM:
The space-based system consisting of the satellite bus, one-
and two-meter panchromatic camera, four-meter multispectral camera and an
associated ground segment consisting of the command and control station, the
ground image receive station and the image processing center.
c. LICENSEE GROUND FACILITY:
The ground image receive station and image processing center
located in the Territory.
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d. OPERATIONAL CAPABILITY DATE:
The date when the OrbView-3 System is placed into operation
following the successful launch and completion of on-orbit checkout of that
satellite, including all of its subsystems and payloads.
e. TERRITORY:
North and South Korea, to include the 200 nautical mile
fishery conservation zone of North and South Korea.
f. ORBIMAGE SYSTEM SOFTWARE:
Proprietary ORBIMAGE software that shall be developed and
provided by ORBIMAGE in order to permit Licensee to generate from the OrbView-3
System satellite raw imagery and high resolution imagery of the Territory.
g. TARGET LAUNCH DATE.
October 31, 1998.
3. GRANT OF LICENSE
a. Subject to receipt of U.S. Department of Commerce and all other
applicable U.S. agency approvals of this Agreement, ORBIMAGE grants to Licensee
an exclusive license in the Territory (the "License") to: (a) receive, process
and sell imagery of the Territory using the OrbView-3 System satellite while it
is within view of the Licensee's ground receive station, (b) use the ORBIMAGE
system methods, (c) use, if permitted by law, the ORBIMAGE logos, trademarks,
service marks and name, in accordance with the terms and conditions set forth in
this Agreement, and (d) install and use the ORBIMAGE System Software. ORBIMAGE
also hereby grants the Licensee priority use of the OrbView-3 System while the
satellites are within effective imaging range during their orbit over the
Territory.
b. ORBIMAGE will command, control and task the OrbView-3 System,
including all of its subsystems, from its ground facilities located in the
United States.
c. The Licensee acknowledges that it must abide by the terms and
conditions of the operating license granted to ORBIMAGE by the U.S. Department
of Commerce as contained in Attachment A. Licensee hereby acknowledges that it
has read, understands and will comply with the contents of Attachment A,
including any subsequent modifications imposed by the Department of Commerce.
The Licensee further acknowledges that it will not knowingly directly or
indirectly sell or provide any OrbView-3 System imagery to any person other than
an Authorized Customer. Violation of any of the terms of this paragraph will be
sufficient cause for, at ORBIMAGE's sole option, immediate cancellation or
termination of this Agreement, including the License granted hereunder.
d. Except as otherwise provided in Section 3(g), the Licensee may not
transfer the License to other users or operators without the prior written
consent of ORBIMAGE.
e. The Licensee acknowledges its responsibility to ensure that all
receivers of OrbView-3 System imagery are notified and agree that they may not
redistribute, sell or provide any OrbView-3
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System imagery in any form to any other entity without the prior written consent
of ORBIMAGE. Licensee shall strictly enforce such prohibitions against any and
all receivers of OrbView-3 System imagery.
f. Licensee has provided ORBIMAGE with a deposit of U.S.$ 250,000 to be
applied against payment due for the Licensee Ground Facility, or if the Licensee
does not award a Ground Facility contract to ORBIMAGE or ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
and Associates Ltd., against the first year payment of U.S. $[Confidential
Treatment] as provided in Section 5(c).
g. Licensee shall have the right to novate this agreement to an entity
to be incorporated under the laws of the Republic of Korea in which an entity
controlled by the Korean Government and/or the Licensee will own more than fifty
percent (50%) of the shares and the other shareholders, if any, will be persons
of the Korean nationality; and provided further that Licensee fully guarantees
the performance under this Agreement of such entity to which this Agreement is
novated.
4. SCOPE OF AGREEMENT
a. Responsibilities and Rights of Licensee. Licensee shall:
(i) Promptly obtain and at all times maintain, at its sole
expense, all governmental approvals, licenses, authorizations and permits (the
"Permits") necessary (A) to develop, construct, implement and operate the
OrbView-3 System in the Territory, including any necessary in-country
environmental impact studies, (B) to provide OrbView-3 System services in the
Territory, and (C) to use the Licensee Ground Facility to receive
high-resolution (1-2 meter panchromatic and 4 meter multi-spectral) imagery
during the term of this Agreement;
(ii) Use all commercially reasonable efforts to advertise,
promote and market the OrbView-3 System and its capabilities, products and
services to Authorized Customers. Except as otherwise provided for in this
Agreement, Licensee is responsible for actively promoting OrbView-3 System
imagery products to all Authorized Customers within the Territory and for
selling OrbView-3 System imagery products of the Territory to all Authorized
Customers located in all parts of the world;
(iii) Operate the Licensee system in a manner so as not to
injure the reputation of ORBIMAGE or otherwise adversely impact the operations
or commercial viability of the OrbView-3 System in other territories;
(iv) With the prior written approval of ORBIMAGE and to the
extent permitted by applicable law, use the OrbView logos and all OrbView
trademarks and service marks in Licensee's marketing and advertising for the
Licensee system. Such use will conform to ORBIMAGE requirements for display and
use of the OrbView logos, trademarks and service marks; and obtain all
governmental approvals, licenses, authorizations and permits necessary to use
such logos, trademarks and service marks and, to the extent not previously done
so by ORBIMAGE, to register such logos, trademarks and service marks in
OrbView's name for use by Licensee in the Territory. Any modification or partial
use of the word "OrbView" for a logo, trademark, service ▇▇▇▇ or trade name
shall also require the prior written approval of ORBIMAGE;
(v) Pay to ORBIMAGE the fees, costs and other payments set
forth in this Agreement;
(vi) Give ORBIMAGE and its representatives reasonable access
during normal
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business hours to Licensee's books, accounts, records, contracts and documents
concerning the Licensee system and use of the logos, trademarks and service
marks for, among other reasons, the purpose of determining compliance by
Licensee with the terms of this Agreement;
(vii) Use the ORBIMAGE System Software only to operate the
Licensee system, and shall not copy or disclose, sell, distribute or re-license
such software to any other person or entity or reverse engineer or compile or
disassemble such software; Licensee may request an extension for the use of the
ORBIMAGE System Software beyond the expiration date of this Agreement provided
both parties mutually agree to the terms and conditions of such an extension;
(viii) Establish an accounting system with books, records and
procedures sufficient to establish and maintain an adequate audit trail of all
transactions conducted by the Licensee. Licensee agrees that only one set of
accounting records will exist for the OrbView-3 System, that all transactions
applicable to the OrbView-3 System will be recorded in these records and that
such records will be updated and maintained on a current basis so as to provide
the means for ORBIMAGE to independently verify compliance with the provisions of
this Agreement ;
(ix) Use the Licensee Ground Facility [Confidential
Treatment];
(x) Have the non-exclusive right to solicit other entities in
the Territory to participate and/or invest in the Licensee's promotion and sales
of OrbView-3 System products in the Territory with prior written approval from
ORBIMAGE; and
(xi) Forward to the ORBIMAGE's ground facility in the United
States, by the most expeditious means, all requests for imagery taskings of the
satellites in the OrbView-3 System. The ORBIMAGE ground facility will
consolidate all worldwide requests for imagery taskings and will uplink these
taskings at the same time to the OrbView-3 System satellite.
b. RESPONSIBILITIES OF ORBIMAGE. ORBIMAGE SHALL:
(i) [Confidential Treatment];
(ii) Use commercially reasonable efforts to assist Licensee in
providing data relating to the OrbView-3 System required by any governmental
authority or agency in connection with Licensee obtaining any of the Permits if
Licensee cannot reasonably provide such data itself; provided that written data
shall be provided at ORBIMAGE's expense and any data required to be presented in
person or orally shall be provided at Licensee's expense; and provided further
that ORBIMAGE shall not be required to disclose any such data unless ORBIMAGE
reasonably believes that such data will be maintained by the receiving party on
a confidential basis;
(iii) Implement advertising and other promotional programs for
the OrbView-3 System, the scope and timing of which shall be at ORBIMAGE's sole
discretion;
(iv) Perform and have sole responsibility for telemetry,
tasking and control of the satellite and all of its subsystems and payloads
using ORBIMAGE facilities located in the United States and Licensee may not
perform these functions from its facilities;
(v) [Confidential Treatment];
(vi) [Confidential Treatment];
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(vii) Provide Licensee with periodic progress reports on a
semi-annual basis in writing; and
(viii) [Confidential Treatment].
5. REVENUE REQUIREMENTS
a. The Licensee will have the sole authority to establish the final
retail price for all OrbView-3 System imagery of the Territory sold to
Authorized Customers located either inside or outside the Territory. It is
mutually agreed that such retail prices should be established at a level so as
to maximize profits from sales of OrbView-3 System imagery of the Territory to
customers throughout the world.
b. Each request for a separate image shall be considered a "tasking";
for example, a stereo image product shall be considered two taskings. Imagery of
the Territory taken by the OrbView-3 System satellite shall be downlinked in
real-time to the Licensee Ground Facility for processing, archiving, and sale.
c. (i) Licensee agrees to pay ORBIMAGE a guaranteed amount of U.S.$
[Confidential Treatment] (the "Guaranteed Amount") per 12-month period,
beginning with the Operational Capability Date of the OrbView-3 System and
ending three years later, for a total payment of U.S.$ [Confidential Treatment],
provided that the raw imagery is transmitted in a reasonable fashion to the
Licensee. (Each 12-month period following the Operational Capability Date is
referred to herein as the "Operational Period.") Such payments shall be made
[Confidential Treatment] on a quarterly basis and shall be in the amount of
U.S.$ [Confidential Treatment], and shall be made regardless of the number of
taskings or archive sales actually ordered by Licensee. The first payment shall
be pro-rated as appropriate depending upon the Operational Capability Date.
(ii) The Guaranteed Amount shall be deemed consideration for
[Confidential Treatment] taskings and sales from the Licensee archive in each
given Operational Period. For the purpose of calculating [Confidential
Treatment] monoscopic mode taskings and sales from the Licensee archive, a
tasking and the first sale of the image from such tasking, whether the sale is
made simultaneously with the tasking or after stored in Licensee's archive,
shall be considered as one. If in the second or third Operational Period,
Licensee has requested more than [Confidential Treatment] in the aggregate,
then Licensee shall pay ORBIMAGE a royalty for each additional tasking and for
each additional sale or delivery of imagery from the Licensee archive during
such Operational Period [Confidential Treatment]. All sales/deliveries of
imagery from the Licensee archive to an [Confidential Treatment] shall be
included in the [Confidential Treatment] number. [Confidential Treatment]
(iii) It is recognized that Licensee may request imagery of
territories other than the Territory, and that ORBIMAGE will use its reasonable
efforts to meet such requests, subject to contractual or other obligations. In
the event such imagery is provided, it shall be subject to the pricing terms set
forth in the preceding paragraph (ii).
d. ORBIMAGE shall invoice Licensee on a quarterly basis for the lump
sum payment and royalties provided for in subsection (c) above. All invoices
shall be paid within 30 days of receipt. In the event Licensee fails to make
payment within the required period, ORBIMAGE, at its discretion, may assess a
finance charge at the prime rate charged by ▇▇▇▇▇▇ Guaranty Trust Company of New
York at the date of invoice plus 5% per annum. Annual license payments related
to subsequent satellites that may be incorporated into the OrbView-3 system will
be the subject of future negotiations.
e. [Confidential Treatment].
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6. LICENSEE GROUND FACILITY
Licensee shall procure a ground image receive station and
image processing center that shall be operational and capable of receiving and
processing OrbView-3 System imagery data no later than the Target Launch Date.
7. TERM OF THE AGREEMENT
a. TERM.
This Agreement shall terminate on the date three years after
the Operational Capability Date of the OrbView-3 System. The terms and other
conditions relating to it, may, by mutual agreement, be modified whenever
additional satellites or other major significant capabilities are contemplated
for addition to the OrbView-3 System. Within one year prior to the expiration of
the initial term of this Agreement, Licensee may request that this Agreement be
extended for a further period of up to ten years, which request shall be subject
to good faith negotiations by both parties.
b. TERMINATION FOR CONVENIENCE.
Each party shall have the right to terminate this Agreement
for convenience at any time by giving ten (10) days notice to the effect to the
other party and shall pay as damages the amounts set forth in Section 7(d)
below.
c. TERMINATION FOR BREACH.
This Agreement may be terminated by the non-breaching party at
any time after the occurrence of any of the following events ("Events of
Default"):
(i) Licensee shall fail to pay any amount due under this
Agreement, within the time period specified, and such payment is not made within
five days notice from ORBIMAGE of such failure;
(ii) Any representation or warranty made by Licensee or
ORBIMAGE in this Agreement or any other document delivered pursuant to this
Agreement shall be false or misleading in any material respect;
(iii) A party shall fail to observe or perform any of its
material obligations under this Agreement, and such failure to observe or
perform is not cured within sixty (60) days of notice of such failure;
(iv) A party shall become insolvent, admit in writing its
inability to pay its debts as they become due, make a general assignment for the
benefit of creditors, suffer or permit the appointment of a receiver for its
business or assets, initiate or become subject to any proceeding under any
bankruptcy or insolvency law, whether domestic or foreign, or liquidate or wind
up, voluntarily or otherwise;
(v) Currency exchange restrictions that prevent Licensee from
making its payments to ORBIMAGE in U.S. dollars shall be imposed by any
governmental authority or agency in the Territory and continue in effect for
more than 12 months;
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(vi) Licensee shall take any action or fail to take any action
that results in Licensee or ORBIMAGE contravening or violating any law in effect
in any part of the Territory or the United States;
(vii) Licensee shall fail to obtain any necessary Korean
Government permits within 60 days after the Operational Capability Date; and
(viii) [Confidential Treatment].
d. DAMAGES
(i) Damages payable by Licensee to ORBIMAGE:
(A) Except as otherwise provided herein, if
prior to the launch and initial of operations of the OrbView-3 System, Licensee
terminates this Agreement for convenience or ORBIMAGE terminates this Agreement
for breach by Licensee, then Licensee shall pay damages to ORBIMAGE
[Confidential Treatment]. The $250,000 deposit provided by Licensee shall be
credited against any payments by Licensee under this subparagraph (A).
(B) Except as otherwise provided herein, if
following the launch of the OrbView-3 System, Licensee terminates this Agreement
for convenience or ORBIMAGE terminates this Agreement for breach by Licensee,
then Licensee shall pay damages to ORBIMAGE in an amount equal to $[Confidential
Treatment] minus any payments made to ORBIMAGE for OrbView-3 services through
the date of termination. Nothing herein shall relieve Licensee of its obligation
to pay all invoices that have been delivered, or obligations otherwise accrued,
prior to such date of termination.
(ii) Damages payable by ORBIMAGE to Licensee:
(A) Except as otherwise provided herein, if
ORBIMAGE terminates this Agreement for convenience or Licensee terminates this
Agreement for breach by ORBIMAGE, then ORBIMAGE shall pay damages to Licensee
[Confidential Treatment]. If the Agreement is terminated pursuant to this
Section 7(d)(ii)(A), ORBIMAGE shall also refund to Licensee the $250,000
deposit.
(iii) All payments for damages under this Section 7 shall be
made within thirty (30) days of termination and may be conditioned upon the
execution by both parties of a mutually acceptable release.
(iv) Notwithstanding anything herein to the contrary, neither
ORBIMAGE nor Licensee shall be liable to the other for any damages, expenses,
costs, indemnification or otherwise in the event this Agreement is terminated
pursuant to Section [Confidential Treatment] or Section [Confidential
Treatment], or Section [Confidential Treatment], except that ORBIMAGE shall
refund all or any portion of the $250,000 that has not been applied against
payment for the Licensee Ground Facility or the first year Guaranteed Amount as
contemplated by Section 3(f) above.
(v) In no event shall any liability of either party exceed the
amounts provided for in this Section 7 (d).
e. USE OF SYSTEM AFTER TERMINATION.
On the effective date of termination of this Agreement,
Licensee shall cease using the
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OrbView-3 System. In the event of the occurrence of an Event of Default by
Licensee, to the extent permitted by law, ORBIMAGE shall be entitled to, in its
sole discretion, establish another Licensee in the Territory. Licensee agrees to
cooperate in ensuring continued operations and transfer of control to the new
Licensee.
8. REPRESENTATIONS AND WARRANTIES
a. Licensee represents and warrants to ORBIMAGE that (i) Licensee is a
corporation duly incorporated and validly existing under the laws of Republic of
Korea; (ii) the execution, delivery and performance of this Agreement by
Licensee has been duly authorized by all necessary action on the part of
Licensee, (iii) this Agreement has been duly executed and delivered by Licensee
and constitutes a legally valid and binding obligation of Licensee, enforceable
against Licensee in accordance with its terms, (iv) Licensee has or will have
all Permits from any governmental authority or agency necessary for Licensee to
perform its obligations under this Agreement.
b. Licensee agrees to indemnify and hold harmless ORBIMAGE and its
affiliates, officers, directors, employees, agents and representatives against
all claims, demands or liabilities (including reasonable attorneys' fees) of
third parties arising out of or in connection with Licensee's wrongful or
grossly negligent operation of the Licensee System, Licensee's misuse of the
OrbView logos, trademarks and service marks or any other intellectual property
rights of ORBIMAGE or any third parties incorporated into the OrbView-3 System,
or Licensee's breach of any representations, warranties, covenants or agreements
contained herein or of any third party rights. This indemnification obligation
shall survive the expiration or termination of this Agreement.
c. ORBIMAGE represents and warrants to Licensee that (i) ORBIMAGE is a
corporation duly incorporated and validly existing under the laws of the State
of Delaware; (ii) the execution, delivery and performance of this Agreement by
ORBIMAGE has been duly authorized by all necessary action on the part of
ORBIMAGE, (iii) this Agreement has been duly executed and delivered by ORBIMAGE
and constitutes a legally valid and binding obligation of ORBIMAGE, enforceable
against ORBIMAGE in accordance with its terms; and (iv) that the OrbView-3
System shall be capable of delivering imagery that meets the criteria set forth
in Attachment D hereto.
9. NON-COMPETITION
a. DURING TERM.
[Confidential Treatment].
b. RESERVED.
c. If ORBIMAGE declares a system failure pursuant to Section
10(c), Licensee shall have the right to participate in another commercial
remote sensing system provided that Licensee has met all of its financial
obligations under this Agreement. Licensee will have been deemed to have met
all financial obligations upon payment to ORBIMAGE for all items delivered as
of the date of system failure.
10. SYSTEM OUTAGES AND FAILURE
a. [Confidential Treatment].
b. In the event ORBIMAGE is unable to provide Licensee with access to
the OrbView-3 System due to temporary or intermittent problems with the
OrbView-3 System (not including planned periods of satellite unavailability that
result from the OrbView-3 System architecture) for a total of more
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than [Confidential Treatment] days during any one year period commencing on the
Operational Capability Date and any anniversary of such date, Licensee's sole
and exclusive remedy shall be to extend the term of this Agreement one day for
each day in excess of such [Confidential Treatment] days that ORBIMAGE is
unable to provide Licensee with access to the OrbView-3 System.
c. If ORBIMAGE determines in its sole discretion that the OrbView-3
System has permanently and irrevocably failed such that Licensee cannot access
the OrbView-3 System, ORBIMAGE shall be entitled to terminate this Agreement.
11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
a. Each of the parties acknowledges and understands that the OrbView-3
System is a new, untested system that entails a high degree of risk of (i) delay
in or cancellation of deployment and (ii) launch vehicle, satellite and other
equipment or software failure or impaired performance, and that there can be no
assurance that the OrbView-3 System will be an economically viable system even
if successfully deployed. Each party shall bear all responsibility, risk and
cost associated with developing and maintaining its respective business. and
ORBIMAGE shall not be liable to Licensee for costs or damages caused by any
schedule delays or failure of the OrbView-3 System or any component thereof,
except as specifically provided herein.
b.
(i) Except as otherwise specifically provided in Section 8
herein, ORBIMAGE makes no representations or warranties whatsoever with respect
to any services and/or products to be provided by ORBIMAGE hereunder, whether
express or implied, including any implied warranty of merchantability or fitness
for an particular purpose, or any implied warranty arising from course of
performance, course of dealing or usage of trade. No representation or other
affirmation of fact, including, but not limited to, statements regarding
capacity or suitability for use, that is not contained in this agreement shall
be deemed to be a warranty by ORBIMAGE.
(ii) Neither ORBIMAGE nor the Licensee shall be liable to the
other for any indirect, incidental, or consequential damages in connection with
this Agreement, including loss of use, revenue or profit. Any liability of one
party to the other for direct damages shall be limited to the amounts set forth
in Section 7(d) above.
c. LICENSEE SHALL INSURE THAT ALL OF ITS AUTHORIZED CUSTOMERS AGREE TO
THE FOREGOING WAIVER OF RIGHTS AND CLAIMS.
12. DISPUTE RESOLUTION
a. In the event of a dispute regarding any matter covered by this
Agreement, ORBIMAGE and Licensee shall use all reasonable efforts to resolve
such dispute within sixty calendar days of when such parties commenced
discussion of such dispute. In the event the parties are unable to agree on the
resolution of such dispute within such period of time, either party may remove
the dispute for settlement by final and binding arbitration in London, England,
in accordance with the then rules of Arbitration of the International Chamber of
Commerce (ICC) (to the extent not modified by this Section). In the event that
more than one dispute arises under this Agreement, such disputes may be
consolidated in a single arbitral proceeding. The arbitral tribunal shall be
composed of three arbitrators, each of whom shall have experience in satellite
business and/or the subject matter of the dispute if it is different. Each of
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ORBIMAGE and Licensee shall appoint one arbitrator. If any party shall fail to
appoint an arbitrator within thirty days from the date on which the other
party's request for arbitration has been communicated to the first party, such
appointment shall be made by the ICC. The two arbitrators so appointed shall
agree upon the third arbitrator who shall act as chairman of the arbitral
tribunal and who shall have experience in satellite business and/or the subject
matter of the dispute, if it is different. If the two appointed arbitrators fail
to nominate a chairman within ten days from the date as of which both
arbitrators shall have been appointed, such chairman shall be selected by the
ICC. In all cases, the arbitrators shall be fluent in English and the
Arbitration shall be conducted in English. Judgment upon any award rendered by
the arbitrators may be entered in 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 attorney's fees incurred by the party seeking to enforce
the award.
b. Pending a final determination by the arbitrators, both parties shall
continue to fulfill all of their obligations under this Agreement, except in the
event that this Agreement has been terminated by either party.
c. The rights of the parties under this Section 12 shall be the
exclusive remedy with respect to any dispute regarding any matter covered by
this Agreement.
13. EXPORT CONTROL AND PROHIBITED FOREIGN TRADE PRACTICES RESTRICTIONS
Any export of ORBIMAGE hardware, software, and other
information shall comply with applicable U.S. export control requirements.
Licensee agrees to comply with all applicable laws, rules, and regulations of
the United States regarding export controls and foreign corrupt practices,
including the United States Federal International Traffic in Arms Regulations
and of the Prohibited Foreign Trade Practices Act are set forth in Attachments B
and C, as they may be amended from time to time.
14. RESERVED
15. MISCELLANEOUS
a. NOTICES.
All notices given under this Agreement must be in writing and
sent by hand delivery, by facsimile transmission or by registered mail, postage
prepaid, to:
Orbital Imaging Corporation:
ORBIMAGE
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
Licensee:
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Samsung Aerospace Industries, LTD
Samsung Life ▇▇▇▇▇▇▇▇
▇▇▇, ▇-▇▇, ▇▇▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇, 100-716
Mail Drop No. ▇▇▇/C.P.O. Box 9762
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to either Licensee or ORBIMAGE shall
be effective upon delivery if hand delivery, twenty-four (24) hours after
transmission, if sent by facsimile, or on the date ten (10) days from posting if
sent by mail.
b. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties, their
successors and permitted assigns. Except as otherwise provided in Section 3(g),
neither this Agreement nor any interests or duties of Licensee hereunder may be
assigned by Licensee without the express written consent of ORBIMAGE, which
consent shall not be unreasonably withheld, provided that either party may
assign this Agreement to any successor in interest by merger, acquisition or
otherwise, or to any parent or subsidiary entity.
c. ENTIRE AGREEMENT.
This Agreement and all attachments (which are hereby made part
of this Agreement) contain the entire understanding between Licensee and
ORBIMAGE and supersede all prior written and oral understandings relating to the
subject hereof. No representations, agreements, modifications or understandings
not contained herein shall be valid or effective unless agreed to in writing and
signed by both parties. Any modification or amendment of this Agreement must be
in writing and signed by both parties.
d. GOVERNING LAW AND JURISDICTION.
(i) The construction, interpretation and performance of this
Agreement, as well as the legal relations of the parties arising hereunder,
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the conflict or choice of law provisions
thereof. The United Nations Convention on Contracts for the International Sale
of Goods (1980) shall not apply to any provision of this Agreement. Neither
party may bring any action for a claim under this Agreement later than one year
after the termination of this Agreement; provided that claims under any
provision of this Agreement that survives termination of this Agreement may be
brought within one year of the later of the occurrence of the event giving rise
to the claim and actual knowledge thereof by the party asserting such claim
e. FORCE MAJEURE.
Neither party shall be held 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 12.
f. WAIVER.
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It is understood and agreed that no failure or delay by either
ORBIMAGE or Licensee in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof, or the exercise of any other
right, power or privilege hereunder. No waiver of any terms or conditions of
this Agreement shall be deemed to be a waiver of any subsequent breach of any
term or condition. All waivers must be in writing and signed by the party sought
to be bound.
g. SEVERABILITY.
If any part of this Agreement shall be held unenforceable, the
remainder of this Agreement will nevertheless remain in full force and effect.
h. HEADINGS.
Headings in this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
i. INDEPENDENT CONTRACTORS.
Licensee and ORBIMAGE are independent contractors to one
another, neither party has the authority to bind the other in any way or to any
third party, and nothing in this Agreement shall be construed as granting either
party the right or authority to act as a representative, agent, employee or
joint venturer of the other.
j. COMMUNICATIONS IN ENGLISH.
The parties agree that all communications, notices or any
written material to be provided by ORBIMAGE to Licensee or by Licensee to
ORBIMAGE under this Agreement shall be in the English language or accompanied by
an accurate and complete translation into English.
k. CALENDAR.
The Gregorian calendar shall be used in calculating, invoicing
and paying all amounts due under this Agreement.
l. PAYMENTS.
All payments due and payable hereunder shall be paid in U.S.
Dollars in immediately available funds to the bank account specified by either
party in writing, as the case may be.
m. This Agreement is executed in English and Korean counterpart.
In the event of a conflict or discrepancy in the interpretation of this
Agreement, the English version will govern.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
ORBITAL IMAGING CORPORATION
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By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: President
SAMSUNG AEROSPACE INDUSTRIES, LTD.
By:
Name: ▇▇▇▇▇ ▇▇▇ Oh
Title: Senior Director
Strategic Business
Development Division
GUARANTEE OF AGREEMENT
With respect to the subject matter of this Agreement, Orbital
Sciences Corporation, as a 100% shareholder of Orbital Imaging Corporation,
hereby guarantees the performance by Orbital Imaging Corporation of this
Agreement.
ORBITAL SCIENCES CORPORATION
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
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ATTACHMENT A
U.S. DEPARTMENT OF COMMERCE OPERATING LICENSE
ISSUED TO ORBIMAGE
On May 5, 1994, the U.S. Department of Commerce issued a
license under Title II of the Land Remote Sensing Policy Act of 1992, P.L.
102-555, for Orbital Sciences Corporation (Licensee), on behalf of Eyeglass
International, to operate a private remote-sensing space system, known as
"Eyeglass". The license was subsequently amended and issued to "ORBIMAGE" to
operate the "OrbView" system. The license is valid for a period of 10 years. The
major contents of the license are outlined below. All references to "Licensee"
are to "ORBIMAGE". It is the intent of this Distribution License Agreement that
all of the requirements levied by the Department of Commerce operating license
on ORBIMAGE shall also apply to the fullest extent to Samsung Aerospace
Industries, Ltd.
A. The license is limited to the operations of a land
remote-sensing space system and subject to the following terms and conditions
that apply to the Licensee and any subsidiary, affiliate, or contractor, as
appropriate. The issuance of the license does not relieve the Licensee of the
obligation to obtain export or other licenses from appropriate U.S. Government
agencies pursuant to applicable statutes.
1. Licensee shall comply with the requirements of the
Act and any applicable regulations issued pursuant to
the Act. The Licensee shall operate the system in a
manner that preserves the national security and
observes the international obligations and foreign
policies of the United States. The Licensee shall at
all times maintain positive control of the spacecraft
including safeguards to ensure the integrity of
spacecraft operations. The Licensee shall maintain
and make available to the U.S. Government, as
requested, a record of all satellite tasking
operations, for the previous year.
During periods when national security or
international obligations and/or foreign policies may
be compromised, as defined by the Secretary of
Defense or the Secretary of State, respectively, the
Secretary of Commerce may, after consultation with
the appropriate agency(ies), require the Licensee to
limit data collection and/or distribution by the
system to the extent necessitated by the given
situation. During those periods when, and for those
geographic areas that, the Secretary of Commerce has
required the Licensee to limit distribution, the
Licensee shall, on request, make the enhanced data
thus limited from the system available exclusively,
by means of government furnished rekeyable encryption
on the downlink, to the U.S. Government. The costs
and terms associated with meeting this condition will
be negotiated directly between the Licensee and DOD
(for the U.S. Government) in accordance with Section
507 (d) of the Act.
The Licensee shall ensure that all encryption devices
used are approved by the U.S. Government for the
purpose of denying unauthorized access to others
during periods when national security or
international obligations and/or foreign policies may
be compromised.
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The Licensee shall use a data downlink format that
allows the U.S. Government access and use of these
data during periods when national security or
international obligations and/or foreign policies may
be compromised. The Licensee shall provide sufficient
documentation to the U.S. Government on the
Licensee's downlink data format to assure this
access.[
2. Licensee will make available to the Government of any
country (including the United States) unenhanced data
concerning the territory under the jurisdiction of
such Government as soon as such data are available
and on reasonable cost terms and conditions.
3. Licensee will make available unenhanced data
requested by the National Satellite Land Remote
Sensing Data Archive (the Archive) in the Department
of the Interior on reasonable cost terms as agreed by
the Licensee and the Archive. After a reasonable
period of time, as agreed with the Licensee, the
Archive may make these data available to the public
at a price equivalent to the cost of fulfilling user
requests.
Before purging any data in its possession, the
Licensee shall offer such data to the Archive at the
cost of reproduction and transmission. The Archive
may make these data available immediately to the
public at a price equivalent to the cost of
fulfilling user requests.
4. Upon termination of operations under the license, the
Licensee will dispose of any satellite in space in a
manner satisfactory to the President. To meet this
condition and to deal with any circumstances
involving the satellite's end of life/termination of
mission, the Licensee shall obtain a priori U.S.
Government approval of all plans and procedures to
deal with the safe disposition of the satellite
(e.g., burn on reentry or controlled deorbit).
5. Licensee shall not change the operational
specifications of the satellite system from the
application as submitted, which would result in
materially different capabilities than those
described in the application, without filing an
amendment as specified in paragraph C.3 of this
license.
6. Licensee shall notify the National Environmental
Satellite, Data, and Information Service (NESDIS) of
any significant or substantial agreement the Licensee
intends to enter with a foreign nation, entity, or
consortium involving foreign nations or entities at
least 60 days before concluding such agreement.
Significant or substantial agreements include, but
are not limited to, agreements which would provide
for the tasking of the satellite and its sensors,
provide for real-time direct access to unenhanced
data, or involve high-volume data purchase
agreements. NESDIS, in consultation with the
appropriate agencies, shall review the proposed
agreement to ensure that it is consistent with the
terms and conditions of this license. Specifically,
the agreement shall require that
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the foreign entity will abide by the conditions in
this license addressing national security and
international obligations and foreign policies. If
NESDIS, in consultation with appropriate agencies,
determines that the proposed agreement will
compromise national security concerns or
international obligations or foreign policy, NESDIS
will so advise the Licensee.
B. Enforcement of this license will be carried out in
accordance with section 203 of the Act. Any civil penalties authorized by
section 203(a) (3) will be assessed in accordance with the procedures set forth
in Subparts B and C of 15 C.F.R. Part 904. Such civil penalties may be assessed
in amounts up to $10,000 for any violation of the Act or any condition of this
license with each day of violation constituting a separate violation.
C. Before the Licensee may take any of the following actions
NESDIS must grant an amendment to the license. NESDIS will consult with the
appropriate Federal agencies, as required by the Act, before taking final action
on the amendment. The Licensee must promptly file all relevant information with
NESDIS if the Licensee anticipates the occurrence of any of the following
conditions:
1. Assignment or transfer of the license;
2. Any change in ownership of the Licensee that would
result in foreign individuals, entities, or consortia
having an aggregate interest in the Licensee in
excess of 25 percent; and
3. Any change in the orbital characteristics,
performance specifications, or data collection and
exploitation capabilities approved above. In the case
of an emergency posing an imminent and substantial
threat of harm to human life, property, environment,
or the remote-sensing space system itself, Licensee
shall not be required to obtain such amendment. If
circumstances permit, Licensee shall attempt to
obtain oral approval from NESDIS prior to making any
such substantial change.
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ATTACHMENT B
COMPLIANCE WITH INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
Although this Agreement is not intended to be a technical
assistance agreement as defined in Part 120.22 of the International Traffic in
Arms Regulations, to the extent any part of this Agreement is deemed to be a
technical assistance agreement, the following provisions of Part 124.8 shall
apply with respect to that part of this Agreement:
A. The applicable part of this Agreement shall not enter into
force, and shall not be amended or extended, without the prior written approval
of the Department of State of the U.S. Government.
B. The applicable part of this Agreement is subject to all
United States laws and regulations relating to exports and to all administrative
acts of the U.S. Government pursuant to such laws and regulations.
C. The parties to this Agreement agree that the obligations
contained in this Agreement shall not affect the performance of any obligations
created by prior contracts or subcontracts which the parties may have
individually or collectively with the U.S. Government.
D. No liability will be incurred by or attributed to the U.S.
Government in connection with any possible infringement of privately owned
patent or proprietary rights, either domestic or foreign, by reason of the U.S.
Government's approval of this Agreement.
E. Any technical data or defense service exported from the
United States in furtherance of this Agreement and any defense article which may
be produced or manufactured from such technical data or defense service may not
be transferred to a person in a third country or to a national of a third
country unless the prior written approval of the Department of State has been
obtained.
F. All provisions in this Agreement which refer to the U.S.
Government and the Department of State will remain binding on the parties after
the termination of this Agreement.
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ATTACHMENT C
PROHIBITED FOREIGN TRADE PRACTICES ACT
A. Licensee agrees that, in connection with this Agreement, it
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any official or
employee of a government, or of any subdivision thereof, with the intent to (1)
influence any official act or decision of such official or employee, (2) induce
such official or employee to do or omit to do any act in violation of his or her
lawful duty, or (3) induce such official or employee to use his or her influence
to affect or influence any act or decision of a government, or of any
subdivision thereof, to assist ORBIMAGE in obtaining or retaining business, or
in directing business to any person.
B. Licensee agrees that, in connection with this Agreement, it
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any political
party or official thereof or any candidate for any political office, with the
intent to (1) influence any official act or decision of such party, official or
candidate, (2) induce such party, official or candidate to do or omit to do any
act in violation of its, his or her lawful duty, or (3) induce such party,
official or candidate to use its, his or her influence to affect or influence
any act or decision of a government, or of any subdivision thereof, to assist
ORBIMAGE in obtaining or retaining business, or in directing business to any
person.
C. Licensee agrees that, in connection with this Agreement, it
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any person,
knowing or having reason to know that all or a portion of such thing of value is
to be given, offered or promised to any official or employee of a government, or
of any subdivision thereof, or any political party or official thereof, or to
any candidate for any political office, with the intent to (1) influence any
official act or decision of such official, party, party official or candidate,
(2) induce such official, party, party official or candidate to do or omit to do
any act in violation of its, his or her lawful duty, or (3) induce such
official, party, party official or candidate to use its, his or her influence to
affect or influence any act or decision of a government, or of any subdivision
thereof, to assist ORBIMAGE in obtaining or retaining business, or in directing
business to any person.
D. Licensee agrees that, in performing its obligations under
this Agreement, it will not undertake, nor cause nor permit to be undertaken,
any activity which either (1) is illegal under any applicable laws, decrees,
rules or regulations in effect in any country, or (2) would have the effect of
causing ORBIMAGE to be in violation of any applicable laws, decrees, rules or
regulations in effect in the United States or in any country.
E. Licensee hereby represents and warrants that neither
Licensee, nor any employee, representative or agent of Licensee, is an official
or employee of the government of any country whose laws are applicable to the
performance of this Agreement ("Applicable Country"), or any subdivision
thereof. Licensee further agrees to notify ORBIMAGE event that this covenant
ceases to be true.
F. Licensee agrees to notify ORBIMAGE immediately of any
extortive solicitation, demand or other request for anything of value, by or on
behalf of any official or employee of the government of any Applicable Country,
or of any subdivision thereof, relating to the subject matter of this Agreement.
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G. If Licensee breaches any of the covenants set forth in A,
B, or C above, (1) this Agreement shall become void, and (2) ORBIMAGE shall have
a cause of action against Licensee for, among other things, the amount of any
monetary payment or thing of value given by Licensee in breach of any of the
above-mentioned covenants.
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ATTACHMENT D
EXPECTED PERFORMANCE OF THE ORBVIEW-3 SYSTEM
--------------------------------------------
- Resolution & Swath Width:
Panchromatic: 1-meter resolution in 8 kilometer swaths
2-meter resolution in 8 kilometer swaths
Multispectral: 4-meter resolution in 8 kilometer swaths
- MTF:
[Confidential Treatment]
[Confidential Treatment]
[Confidential Treatment]
Revisit over the Korean Peninsula every three days or less.
- Accuracy
[Confidential Treatment]
[Confidential Treatment]