exv10w2w1



 





EXHIBIT 10.2.1


[***] 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 AMENDED AN RESTATED DISTRIBUTOR LICENSE AGREEMENT



THIS AMENDMENT NO. 1 TO THE AMENDED AND RESTATED DISTRIBUTOR LICENSE AGREEMENT
(this “Amendment”) is made and entered into as of November 7, 2002, by and
between Orbital Imaging Corporation, a Delaware corporation (“ORBIMAGE”), whose
principal place of business is 21700 Atlantic Boulevard, Dulles, Virginia 20166
Unites States of America, Korea Aerospace Industries, Ltd. A corporation
organized and existing under the laws of Korea Aerospace Industries, Ltd., a
corporation organized and existing under the laws of Korea (“Licensee”), whose
principal place of business is 135, Seosomun-Dong, Jung-Gu, Seoul 100-737
Korea, and [******************************].




RECITALS




     WHEREAS, ORBIMAGE and Licensee are parties to that certain Amended and
Restated Distributor License Agreement, dated September 1, 2000 (the
“Agreement”);



     WHEREAS, the Parties desire to amend the Agreement to, among other things,
make certain clarifications to the Agreement in light of the launch failure of
the OrbView-4 System satellite, provide the ORBIMAGE Distributor Image Tasking
Optimization System (the “DITOS System”) and a [************] training credit
to Licensee and permit Licensee’s ground station contractor, McDonald
Detweiller and Associates, to deliver the ground station data processing system
after the successful launch of the OrbView-3 Systems satellite 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 therein, 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 2 of the Agreement




     ORBIMAGE and Licensee hereby amend Section 2 of the Agreement deleting
Section 2(j) in its entirety and replacing it with the following:



     “j. Operational Capability Date: The date on which the OrbView-3 System
satellite is placed into operation following the successful launch and
completion of on-orbit checkout of such satellite, including all of its
subsystems and payloads.”



 









 





Article 2 – Amendment to Section 3 of the Agreement




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



               “(ii) upon the successful launch and on-orbit checkout of the Primary
Satellite, an exclusive license in the territory to eceive OrbView Imagery of
the Territory using the Primary Satellite on a priority basis while such
satellite is within the Effective Imaging Range. The foregoing license shall
also include the exclusive right to process and distribute OrbView Imagery of
the Territory solely to Authorized Customers located in the Territory.”



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



               “(v) a fully paid, non-exclusive license in the Territory during the term
hereof to use DITOS solely for the purpose of producing image tasking orders
for the OrbView-3 System in accordance with the terms and subject to the
conditions of this Agreement. It is the intent of the parties that Licensee
will use DITOS on a stand alone basis. ORBIMAGE shall provide DITOS to
Licensee at no charge as soon as reasonably practicable after the successful
launch and completion of on-orbit checkout of the OrbView-3 System satellite,
and Licensee will be soley responsible for all costs and expenses of
installation and operation. The parties agree that the “target date” for
ORBIMAGE to provide DITOS to Licensee will be three (3) weeks after the
completion of on-orbit checkout of the OrbView-3 System satellite, however,
this target date is non-binding and ORBIMAGE’s failure to provide Licensee with
DITOS by the target date shall not constitute a breach or violation of this
Agreement. Notwithstanding the foregoing, the Licensee has an option to
integrate DITOS into the Licensee Ground Facility. If Licensee elects to
integrate DITOS, Licensee shall bear the risk of, and shall be solely
responsible for all costs and expenses of, integrating DITOS into the Licensee
Ground Facility; and”



Article 3 – Amendment to Section 4 of the Agreement




     (a) ORBIMAGE and Licensee hereby amend Section 4 of the Agreement by
deleting Section 4(b)(ii) in its entirety and replacing it with the following:



               “(ii) Notwithstanding the foregoing, in the event of the OrbView-3 System
satellite has not been launched by December 31, 2002, or such rescheduled date
mutually agreeable to the parties if the launch is delayed due to a cause
attributable to the launch facility and beyond the reasonable control of
ORBIMAGE, then ORBIMAGE and Licensee shall each have the option to terminate
this Agreement immediately, provided, that written notice of such termination
must be delivered to the other party no later than January 15, 2003 or fifteen
(15) days after any such rescheduled launch date (or the first business day
thereafter if such date falls



 









 




on a weekend or holiday). In the event this Agreement is terminated pursuant
to this Section 4(b)(ii), neither party shall have any liability to the other
party hereunder.”




     (b) ORBIMAGE and Licensee hereby amend Section 4 of the Agreement by
adding new Section 4(b)(xii) as follows:



               “(xii) Provide Licensee with the equivalent retail value of [************]
in training during the term of this Agreement directly relating to (1)
operational and management matters in connection with the Licensee’s Ground
Facility and (2) the processing and generation of OrbView Imagery. Prior to
the commencement of each Operational Period, Licensee shall provide written
notice to ORBIMAGE regarding the type, duration and dates for the training it
desire during such Operational Period, provided, however, that ORBIMAGE shall
not be obligated to perform any training until after the date that is six (6)
months following the Operational Capability Date.”



Article 4 – Amendment to Section 5 of the Agreement




     ORBIMAGE and Licensee herby amend Section 5 of the Agreement by deleting
Section 5(c)(i) in its entirety and replacing it with the following:



               “c. (i) Licensee agrees to pay ORBIMAGE a guaranteed amount of
U.S.$5,000,000 during each Operational Period during the return hereof, for a
total payment during the initial term of U.S.$20,000,000, provided that the raw
imagery is transmitted in a reasonable fashion to Licensee. Such payments
shall be made in arrears on a quarterly basis and shall be in the amount of
U.S.$1,250,000 per quarter in each Operating Period. The first payment shall
be pro-rated as appropriate depending upon the actual date of commencement of
the first Operational Period. To the extent ORBIMAGE has made available the
required minimum imaging window time hereunder, Licensee must pay the
guaranteed amounts regardless of the imagin window time actually used by
Licensee. For the avoidance of doubt, ORBIMAGE and Licensee agree that the
first Operational Period for which a payment is due ORBIMAGE hereunder shall
commence on the Operational Capability Date or the date Licensee accepts the
Licensee Ground Facility, whichever is later, provided, however, that in no
event shall the first Operational Period commence later than sixty (60) days
after the Operational Capability Date regardless of whether or not Licensee has
accepted or made operational the Licensee Ground Facility. The Licensee’s
failure to make any payment due ORBIMAGE after the commencement of the first
Operational Period shall constitute an event of default under Section 7(c)(i)
of this Agreement entitling ORBIMAGE to exercise any and all of its termination
and other rights and remedies under this Agreement.”



Article 5 – Amendment to Section 6 of the Agreement



ORBIMAGE and Licensee hereby amend Section 6 of the Agreement by deleting
Section 6 in its entirety and replacing it with the following:




 









 







“6 – LICENSEE GROUND FACILITY




     Licensee shall use its best effort to procure and accept an operational
Licensee Ground Facility and cause the contractor constructing and installing
the Licensee Ground Facility to deliver the same as soon as practicable but no
later than sixty (60) days after the Operational Capability Date.”



Article 6 – Miscellaneous




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



     (b) Except as expressly modified or amended herby, 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.




	 	 	 	 	 	 	 
	ORIBITAL IMAGING CORPORATION	 	 	 	KOREA AEROSPACE
	

	 	 	 	 	 	INDUSTRIES, LTD.
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	

	 	

	 	 	 	

	Matthew O’Connell	 	 	 	 
	Chief Executive Officer	 	Name:	 	 
	

	 	 	 	 	 	

	

	 	 	 	Title:	 	 
	

	 	 	 	 	 	








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