exv10w1w1



 





EXHIBIT 10.1.1


[***] in this exhibit
indicates that a confidential portion of the exhibit has been
omitted; such portion has been filed separately with the Securities
and Exchange Commission.



AMENDMENT NO. 1

TO ORBIMAGE DISTRIBUTION AGREEMENT




     THIS AMENDMENT NO. 1 TO ORBIMAGE DISTRIBUTION AGREEMENT (this “Amendment”)
is made and entered into as of January 12, 2004, by and between ORBIMAGE Inc.,
a Delaware corporation (formerly Orbital Imaging Corporation and renamed
ORBIMAGE Inc. upon the effective date of the company’s Plan of Reorganization
confirmed under Chapter 11 of the U.S. Bankruptcy Code, “ORBIMAGE”), whose
principal place of business is 21700 Atlantic Boulevard, Dulles, Virginia 20166
United States of America, and NTT Data Corporation, a corporation organized and
existing under the laws of Japan (“NTT DATA”), whose principal place of
business is Toyosu Center Bldg. 3-3, Toyosu 3-Chome, Koto-ku, Tokyo 135 Japan.



RECITALS




     WHEREAS, ORBIMAGE and NTT DATA are parties to that certain ORBIMAGE
Distribution Agreement, dated as of March 18, 1999 (the “Agreement”);



     WHEREAS, the Parties desire to amend the Agreement to (i) recognize the
launch failure of the OrbView-4 High Resolution Satellite; (ii) reflect
ORBIMAGE’s commitment to negotiate with the ORBIMAGE distributor in Korea and
use best efforts to obtain access and distribution rights to OrbView Data of
Korea for the benefit of NTT DATA, (iii) change the fees payable by NTT DATA to
ORBIMAGE for the OrbView Data and Recorded OrbView Data received by NTT DATA
from a per image fee to a per minute fee for access to the OrbView-3 Satellite
and (iv) reduce the Guaranteed Annual Minimum (as defined in Section 8 of the
Agreement) payable by NTT DATA to ORBIMAGE during the term of the Agreement on
the terms and conditions set forth herein.



     NOW THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein by this reference, the mutual covenants, agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:



Article 1 — Amendment to Section 1 of the Agreement




     (a) ORBIMAGE and NTT DATA hereby amend Section 1 of the Agreement by
adding the following additional defined terms:



          “Access Fee” has the meaning set forth in Section 8(c)(ii) of the
Agreement.



          “Imaging Time” means the period of time measured in minutes and seconds
that the OrbView-3 High Resolution Satellite actually spends imaging and
slewing between targets during daylight hours when the OrbView-3 High
Resolution Satellite is within the Effective Imaging Range and/or transmitting
OrbView Data or Recorded OrbView Data to the Designated Earth Station.”



     (b) ORBIMAGE and NTT DATA hereby acknowledge the launch failure
of the OrbView-4 High Resolution Satellite in September 2001.
Accordingly, the parties agree that



ORBITAL IMAGING CORPORATION

CONFIDENTIAL AND PROPRIETARY
















 





the defined term High Resolution Satellite or High Resolution Satellites
as used in this Agreement refers solely to the OrbView-3 High Resolution
Satellite.




Article 2 – Amendment to Section 2 of the Agreement




     (a) ORBIMAGE and NTT DATA hereby amend Section 2 of the Agreement by
deleting Section 2(b)(ii) in its entirety and replacing it with the following:




               “(ii) NTT DATA shall have the right to create a single type of
Value-Added Product (including Basic Products) from OrbView Data
contained in the Unprocessed Data Archive in consideration of the payment
of the Access Fee described in Section 8(a). NTT DATA shall have the
right to create additional types of Value-Added Products (including Basic
Products) from the same OrbView Data if it pays ORBIMAGE the Additional
Processing Fee set forth in Section 8(a) for each new type of Value-Added
Product or Basic Product created therefrom. The Access Fee and
Additional Processing Fees shall also entitle NTT DATA to sell and
otherwise distribute all or any portion of the resulting types of
Value-Added Products or Basic Products in accordance with this Agreement
without payment of any additional compensation to ORBIMAGE. Further, NTT
DATA shall have the right to create additional Value-Added Products or
Basic Products based upon products contained in the Product Archive, or
to make any enhancements of any nature to such products, if NTT DATA pays
the Additional Processing Fee described in Section 8(a). For the
avoidance of doubt, Exhibit A hereto sets forth an example of the
foregoing. This Section 2(b)(ii) shall not apply to Value-Added Products
and Basic Products created from OrbView Data contained in the OrbNet
Archive.”



     (b) ORBIMAGE and NTT DATA hereby amend Section 2 of the Agreement by
deleting Section 2(b)(iv) in its entirety and replacing it with the following:



               “(iv) Notwithstanding anything in Sections 2(b)(ii) and (iii) to the
contrary, it is the intent of the parties that NTT DATA shall only be required
to pay the Access Fee (and not the Additional Processing Fee) if in order to
create a Value-Added Product from OrbView Data the Designated Earth Station’s
systems first require that NTT DATA process such OrbView Data into a Basic
Product before it can further process the resulting Basic Product into a
Value-Added Product. Thereafter, each time NTT DATA processes such Basic
Product or the resulting Value-Added Product to create another type of
Value-Added Product, it shall pay ORBIMAGE the Additional Processing Fee. For
the avoidance of doubt, Exhibit A hereto sets forth an example of the
foregoing.”



Article 3 – Amendment to Section 3 of the Agreement




     (a) ORBIMAGE and NTT DATA hereby amend Section 3(b) of the Agreement by
deleting Section 3(b) in its entirety and replacing it with the following:



               “(b) Reception Rights. Subject to the terms and conditions of this
Agreement, including, without limitation, Section 5, NTT DATA shall have the
following reception rights:




          (i) Exclusive Territory. NTT DATA shall have the right to receive
OrbView Data of the Exclusive Territory at the Designated Earth Station
when the



ORBIMAGE INC.

CONFIDENTIAL AND PROPRIETARY




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OrbView-3 High Resolution Satellite is within the Effective Imaging
Range of the Exclusive Territory, as follows:




                    (A) NTT DATA shall have the right to receive a minimum of
[****************************] minutes of OrbView-3 High Resolution
Satellite Imaging Time of the Exclusive Territory per Operational
Year (“Priority OrbView Images”); and




                    (B) During the term of this Agreement and subject to satellite
availability as determined by ORBIMAGE, NTT DATA shall have the
right to use additional OrbView-3 High Resolution Satellite Imaging
Time of the Exclusive Territory per Operational Year (i) on a
non-priority basis (“Non-Priority OrbView Images”) and (ii) on a
priority basis (also referred to herein as “Priority OrbView
Images”).




          (ii) Non-Exclusive Territory. During the term of this Agreement and
subject to satellite availability as determined by ORBIMAGE, NTT DATA
shall have the right to receive OrbView Data of the Non-Exclusive
Territory at the Designated Earth Station on a priority basis (also
referred to herein as “Priority OrbView Images”) and on a non-priority
basis (also referred to herein as “Non-Priority OrbView Images”) when the
High Resolution Satellites are within the Effective Imaging Range of the
Non-Exclusive Territory. Notwithstanding anything in this Section
3(b)(ii) to the contrary, ORBIMAGE shall have the right to limit or
terminate the rights of NTT DATA to receive OrbView Data of the
Non-Exclusive Territory as provided in Section 2(e).




          (iii) Standard Operating Procedures. All requests for OrbView Data
hereunder will be in accordance with ORBIMAGE’s Standard Operating
Procedures, to be provided to NTT DATA by ORBIMAGE prior to the launch of
the first High-Resolution Satellite, as such procedures may be amended by
ORBIMAGE from time to time (the “Standard Operating Procedures”).”



     (b) ORBIMAGE and NTT DATA hereby amend Section 3(c)(i) of the Agreement by
deleting Section 3(c)(i) in its entirety and replacing it with the following:



          “(i) During the term of this Agreement and subject to satellite
availability as determined by ORBIMAGE, NTT DATA shall have the non-priority
right to receive OrbView Images of any area in the world outside of the
Territory (“Recorded OrbView Images”). NTT DATA shall also have the right to
receive Recorded OrbView Images on a priority basis subject to satellite
availability as determined by ORBIMAGE. For purposes of this Agreement, the
OrbView Data from which such images are generated shall be referred to as
“Recorded OrbView Data.” Recorded OrbView Data will be stored on the High
Resolution Satellite’s recorder and shall be delivered to NTT DATA in such
manner as ORBIMAGE shall determine. All requests for Recorded OrbView Data
shall be in accordance with ORBIMAGE’s Standard Operating Procedures.”



Article 4 – Amendment to Section 4 of the Agreement




     ORBIMAGE and NTT DATA hereby amend Section 4 of the Agreement by adding
the following new subsection (e):



ORBIMAGE INC.

CONFIDENTIAL AND PROPRIETARY




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     “(e) Program Review. Upon NTT DATA’s written request and no earlier than
six (6) months after the Operational Date, ORBIMAGE agrees to review with NTT
DATA the ORBIMAGE High Resolution Satellite program, delivery of Orbview Data
and payment terms, and to amend the relevant terms of this Agreement if
necessary.
”



Article 5 — Amendment to Section 5 of the Agreement




     ORBIMAGE and NTT DATA hereby amend Section 5(c) of the Agreement by
deleting Section 5(c) in its entirety and replacing it with the following:



               “(c) Notwithstanding herein anything to the contrary, NTT DATA’s rights
under this Agreement are subject to the following limitations: (i) NTT DATA has
no right to distribute in Korea OrbView Data of Korea obtained from the
OrbView-3 High Resolution Satellite or any Basic Products and Value-Added
Products derived therefrom; (ii) ORBIMAGE’s current Korean licensee has
priority use of the OrbView-3 High Resolution Satellite when the OrbView-3 High
Resolution Satellite is within the Effective Imaging Range of Korea; and (iii)
NTT DATA’s right to receive OrbView Data of Korea from the OrbView-3 High
Resolution Satellite is subject to the consent of ORBIMAGE’s current Korean
licensee. Nevertheless, ORBIMAGE shall negotiate with the Korean licensee and
use best efforts to obtain access and distribution rights to OrbView Data of
Korea from the Korean licensee which ORBIMAGE would then make available to NTT
DATA on terms and conditions agreed to by ORBIMAGE and NTT DATA.”



Article 6 – Amendment to Section 8 of the Agreement




     (a) ORBIMAGE and NTT DATA hereby amend Section 8(a) of the Agreement by
deleting Section 8(a) in its entirety and replacing it with the following:



          “(a) Processing Fees for OrbView Data Contained in the Unprocessed Data
Archive.




               (i) Access Fee for Tasked OrbView Data. NTT DATA agrees to
pay ORBIMAGE the Access Fee for each minute of OrbView-3 High
Resolution Satellite Imaging Time used by NTT DATA to receive
OrbView Data at the Designated Earth Station pursuant to Section
3(b).




               (ii) Additional Processing Fees. NTT DATA agrees to pay
ORBIMAGE the following additional processing fees (collectively,
the “Additional Processing Fees”):




                    (A) Recorded OrbView Data.


	 	 	 
	 	                    (1) NTT DATA agrees to pay ORBIMAGE an amount
equal to the Access Fee for each minute of OrbView-3
High Resolution Satellite Imaging Time used by NTT DATA
to receive Recorded OrbView Data at the Designated
Earth Station pursuant to Section 3(c) [************].









ORBIMAGE INC.

CONFIDENTIAL AND PROPRIETARY




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                    (2) NTT DATA agrees to pay ORBIMAGE the following
amounts for Recorded OrbView Data delivered to NTT DATA
other than by downlink from the OrbView-3 High
Resolution Satellite to the Designated Earth Station:
[*******************************************************
***************].




(B) New Value-Added Products. NTT Data agrees to pay
ORBIMAGE an additional processing fee
[***********************] each time it creates a new
type of Value-Added Product (including Basic Products)
from an OrbView Image in the Unprocessed Data Archive
or the Product Archive, as described in Section
2(b)(ii).




     (iii) Payment terms. Access Fees shall be payable on a monthly
basis as provided in Section 8(e) based upon the month in which the
applicable OrbView Data is received by NTT DATA, whether or not NTT DATA
ever processes the OrbView Data. Additional Processing Fees shall be
payable on a monthly basis as provided in Section 8(e) based upon the
month in which the additional processing was performed. The Access Fees
and Additional Processing Fees are payable whether or not NTT DATA sells
any resulting Basic Products or Value-Added Products.”



     (c) ORBIMAGE and NTT DATA hereby amend Section 8(c) of the Agreement by
deleting Section 8(c) in its entirety and replacing it with the following:



          “(c)(i) Guaranteed Annual Minimum. In consideration of the rights granted
under this Agreement, NTT DATA shall pay ORBIMAGE minimum fees in the amount of
Three Million Five Hundred Thousand U.S. Dollars ($3,500,000) per Operational
Year during the term of this Agreement (the “Guaranteed Annual Minimum”). If,
at the end of any Operational Year, the fees paid by NTT DATA pursuant to
Sections 8(a) and 8(b) are less than the amount of the Guaranteed Annual
Minimum for that Operational Year, then NTT DATA shall pay ORBIMAGE the balance
within thirty (30) days of NTT DATA’s receipt of ORBIMAGE’s invoice for such
amount.



          (ii) Access Fees. NTT DATA shall pay to ORBIMAGE the (1) per minute fees
set forth below to access the OrbView-3 High Resolution Satellite in order to
receive OrbView Data and Recorded OrbView Data pursuant to Section 3 of this
Agreement (the “Access Fees”):



	 	 	 
	Total Cumulative Fees Received By	 	 
	ORBIMAGE During Each Operational	 	 
	Year
	 	Per Minute Access Fee

	Up to $3,500,000
	 	[********]
	$3,500,001 to $4,500,000
	 	[********]
	$4,500,001 to $6,000,000
	 	[********]
	$6,000,001 to $7,000,000
	 	[********]
	Over $7,000,000
	 	[********]







ORBIMAGE INC.

CONFIDENTIAL AND PROPRIETARY




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[*******************************]




     (c) ORBIMAGE and NTT DATA hereby amend Section 8(e)(i) of the Agreement by
deleting Section 8(e)(i) in its entirety and replacing it with the following:




          “(e) Payments by NTT DATA.


	 	 	 
	 	 	               (i) Monthly Reports. No later than the seventh (7th) business
day of each month during each Operational Year, ORBIMAGE shall have
received from NTT DATA a report listing (A) the OrbView-3 High
Resolution Satellite Imaging Time used by NTT DATA to receive
OrbView Data, Recorded OrbView Data and Third-Party OrbView Data at
the Designated Earth Station, (B) the number OrbView Images subject
to the Additional Processing Fees during the previous month, and
(C) such other information as ORBIMAGE shall reasonably request
solely for the purpose of confirming the amounts owed by NTT DATA
hereunder.”







ORBIMAGE INC.

CONFIDENTIAL AND PROPRIETARY




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Article 7 – Amendment to Exhibit A of the Agreement




     ORBIMAGE and NTT DATA hereby amend Exhibit A to the Agreement by deleting
Exhibit A in its entirety and replacing it with the following:



“Exhibit A




Example: Access Fees and Additional Processing Fees




[*******************************]




Article 8 — Miscellaneous




     (a) Capitalized terms not otherwise defined herein shall have the meaning
set forth in the Agreement.



     (b) Except as expressly modified or amended hereby, all of the terms and
conditions of the Agreement shall remain in full force and effect.



     (c) This Amendment may be executed in two or more counterparts, each of
which shall be considered an original and all of which together shall
constitute one and the same instrument.



     IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first above written.



ORBIMAGE INC.

CONFIDENTIAL AND PROPRIETARY




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	ORBIMAGE INC.	 	NTT DATA CORPORATION
	 
	 	 	 	 	 	 	 	 	 	 
	By :

	 	 	 	By :	 	 	 	 	 	 
	

	 	

	 	 	 	
	 	 	 	 
	Matthew O’Connell	 	 	 	 	 	 	 	 
	Chief Executive Officer	 	 	 	 	 	 	 	 







ORBIMAGE INC.


CONFIDENTIAL AND PROPRIETARY





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