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EXHIBIT 10.11
HYPERSPECTRAL IMAGING
DATA AGREEMENT
This Hyperspectral Imaging Data Agreement (this "Agreement" or "HSI
Data Agreement") is made and entered into this 31st day of December 1998
between Orbital Sciences Corporation ("Orbital"), a Delaware corporation, and
Orbital Imaging Corporation ("ORBIMAGE"), a Delaware Corporation.
WITNESSETH
WHEREAS, the parties desire to enter into this Agreement for purposes
of ORBIMAGE providing Hyperspectral Imaging ("HSI") Data Sets to Orbital for
delivery to its U.S. Air Force ("USAF") customer in accordance with ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇-▇▇-▇-▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇▇▇▇▇▇").
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:
1) DEFINITIONS
"HSI Contract" shall mean the U.S Air Force/▇▇▇▇▇▇▇▇ Laboratory contract
(Contract No. F29601-97-C-0110), between Orbital and the USAF duly executed on
August 5, 1997.
"ORBIMAGE System Procurement Agreement" shall mean the agreement between
Orbital and ORBIMAGE dated November 18, 1996, and as amended on May 8, 1997,
December 31, 1997, February 26, 1998 and December 31, 1998.
2) ORBITAL'S PURCHASE OF HSI DATA SETS
Orbital hereby agrees to purchase HSI Data Sets from ORBIMAGE for
delivery to its USAF customer in accordance with the HSI Contract. Except with
the prior written consent of ORBIMAGE, which shall not be unreasonably
withheld, Orbital shall not make any use of the HSI Data sets delivered by
ORBIMAGE other than pursuant to the HSI Contract. Orbital agrees to pay
ORBIMAGE $31,000,000 for HSI Data Sets in accordance with CLIN 0003 of the HSI
Contract. This amount shall be adjusted to reflect the final combined value of
HSI Contract CLINs 0001 through 0003. Orbital shall forward such payment upon
the launch of OrbView-4 in accordance with the Milestone Payment Schedule set
forth in Exhibit A. To the extent the USAF exercises any options under the HSI
Contract to purchase HSI Data Sets, Orbital shall purchase such Data Sets from
ORBIMAGE at a price equal to the total value of the option exercised as paid by
USAF. Orbital will pay ORBIMAGE for all such purchases no later than ten (10)
days after Orbital receives any payment from USAF.
3) ORBIMAGE LIMITATION OF LIABILITY
ORBIMAGE 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 HSI DATA AGREEMENT.
ORBIMAGE SHALL NOT BE LIABLE TO ORBITAL FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING UNDER OR RELATING TO THE HSI CONTRACT.
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4) NO THIRD PARTY BENEFICIARY RIGHTS
Nothing herein shall be construed to confer any third-party
beneficiary rights to the USAF under this HSI Data Agreement. Orbital agrees
to indemnify ORBIMAGE for any damages arising from any claims by the USAF
against ORBIMAGE relating to the HSI Contract.
5) TERMINATION
In the event the USAF terminates its requirements for HSI Data under
the HSI Contract, Orbital shall likewise have the right to terminate this
Agreement.
6) STANDARDS OF CONDUCT
ORBIMAGE 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 performed by
Orbital under the ORBIMAGE System Procurement Agreement). Orbital shall employ
commercially reasonable standards of business conduct in the performance of its
obligations under the HSI Contract.
7) 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.
8) ENTIRE AGREEMENT
This Agreement and attachments contains the entire understanding
between the parties concerning the HSI Data Sets that ORBIMAGE will provide
Orbital in support of the HSI contract and supersedes all prior written and
oral understandings relating to the subject hereof.
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:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, Finance and
Chief Financial Officer
ORBITAL IMAGING CORPORATION (ORBIMAGE)
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: President and Chief Operating Officer
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EXHIBIT A
MILESTONE PAYMENT SCHEDULE
($ IN THOUSANDS)
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DATE MILESTONE PAYMENTS MONTHLY PAYMENTS
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2000
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March For HSI Data Sets * $31,000
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TOTAL PAYMENT $31,000
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* Payment is for HSI Data Sets as required under CLIN 0003 of the HSI Contract
and is due upon launch of OrbView-4.
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