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EXHIBIT 10.5.4
AMENDMENT NO. 4 TO
ORBCOMM SYSTEM PROCUREMENT AGREEMENT
This Amendment No. 4 ("Amendment No. 4") to the ORBCOMM System
Procurement Agreement is entered into this 31st day of March, 1998 between
ORBCOMM Global, L.P. ("ORBCOMM Global") and Orbital Sciences Corporation
("Orbital").
WITNESSETH
WHEREAS, the parties previously entered into the ORBCOMM System
Procurement Agreement dated September 12, 1995 (the "Procurement Agreement")
and Amendments No. 1, No. 2 and No. 3 thereto; and
WHEREAS, the terms associated with the option to procure an additional
Pegasus launch vehicle have expired; and
WHEREAS, the parties wish to further amend the Procurement Agreement
to provide for the launch of a fourth plane of satellites into an equatorial
orbit using the Pegasus launch vehicle.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Procurement Agreement.
ARTICLE 2 - AMENDMENTS
Section 2.1 Section 3.1 of the Procurement Agreement shall be
amended to add a new paragraph (d) immediately following paragraph (c) that
reads as follows:
"(d) One (1) Pegasus XL Launch Vehicle $ 26,500,000
Launch Service (0 Degree Inclination)"
Section 2.2 Section 3.2(a) of the Procurement Agreement shall be
deleted in its entirety and the remaining paragraph of Section 3.2 shall be
amended by deleting the "(b)" paragraph designation.
Section 2.3 Section 4.1(b)(i) of the Procurement Agreement shall
be deleted in its entirety and replaced with the following:
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"(i) Orbital shall be entitled to invoice ORBCOMM Global on a
monthly basis for a maximum of 90% of its costs incurred during such month
plus, to exclude costs associated with Section 3.1(a)(iv), Section 3.1(c) and
Section 3.1(d), to the extent permitted by Section 4.1(f), such portion of the
cost in excess of the maximum amount to be invoiced to ORBCOMM Global in
accordance with such Section 4.1(f) and not previously invoiced and paid;
provided however that Orbital shall not be entitled to invoice ORBCOMM Global
under Section 4.1(a) and this Section 4.1(b)(i) in a cumulative total amount
greater than $125,884,929."
Section 2.4 Section 4.1(b) of the Procurement Agreement shall be
amended to add a new subparagraph (iii) immediately following subparagraph (ii)
that reads as follows:
"(iii) Orbital shall be entitled to invoice ORBCOMM Global for costs
associated with Section 3.1(c) as follows:
PAYMENT DATE AMOUNT
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October 1, 1998 $ 1,500,000
January 1, 1999 $ 2,000,000
April 1, 1999 $ 2,000,000
July 1, 1999 $ 2,000,000
October 1, 1999 $ 5,000,000
The Earlier of March 31, 2000 $14,000,000*
Or Launch of Fourth Plane"
*If the launch is delayed beyond March 31, 2000 due to the
unavailability of the Satellites, Orbital shall be entitled to invoice
ORBCOMM at the monthly rate of $1,000,000, beginning on April 30,
2000, with the balance due on launch. In no event shall Orbital be
entitled to invoice ORBCOMM in an amount to exceed $14,000,000.
Section 2.5 The first sentence of Section 4.4 of the Procurement
Agreement shall be deleted in its entirety and replaced with the following:
"Subject to the foregoing, Orbital shall be entitled to submit to
ORBCOMM Global at the address below monthly invoices covering the
amounts as described in Subsection 4.1(b)(i), invoices covering the
amounts set forth in Subsections 4.1(b)(ii) and 4.1(b)(iii) or
invoices for Category A and Category B Milestone payments, in each
case certified by the Vice-President and Controller of Orbital or by
any other officer designated by the Vice-President and Controller of
Orbital in the form provided for in Schedule 4.4."
Section 2.6 Section 5.1(b)(iv) of the Procurement Agreement shall
be deleted in its entirety and replaced with the following:
"(iv) Satellites 25 - 26 and Launch Vehicle Feb. 1998
Launch Service (Taurus)"
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Section 2.7 Section 5.1(b) of the Procurement Agreement shall be
amended to add a new subparagraph (v) immediately following subparagraph (iv)
that reads as follows:
"(v) Satellites 27 - 34 and Launch Vehicle Jul. 1999
Launch Service No. 4"
Section 2.8 Section 16.8(a) of the Procurement Agreement shall be
deleted in its entirety, and the remaining paragraphs of Section 16.8 shall be
sequentially renumbered.
Section 2.9 Exhibit A, Part 2 of the Procurement Agreement shall
be amended to add Attachment 1, Statement of Work and Specification for the
ORBCOMM-4 Launch Services as set forth in Exhibit A hereto.
SECTION 3 - MISCELLANEOUS
Section 3.1 This Amendment No. 4 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 related to choice or
conflict of laws.
Section 3.2 No changes to the Procurement Agreement are
authorized hereby except as otherwise specified in this Amendment No. 4.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 4 as
of the day and year first above written.
ORBCOMM GLOBAL, L.P.
By:
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Name: Scott L. Webster
Title: Chairman & Chief Executive Officer
ORBITAL SCIENCES CORPORATION
By:
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Name: Jeffrey V. Pirone
Title: Executive Vice President &
Chief Financial Officer
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EXHIBIT A
TO
AMENDMENT NO. 4