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EXHIBIT 10.17
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
This Amended and Restated Administrative Services Agreement
("Agreement") is entered into as of January 1, 1997 between Orbital Sciences
Corporation, a Delaware corporation ("Orbital"), and ORBCOMM Global, L.P., a
Delaware limited partnership.
W I T N E S S E T H:
WHEREAS, Orbital and ORBCOMM Global L.P. entered into that certain
Administrative Services Agreement dated September 12, 1995, pursuant to which
Orbital agreed to perform on behalf of ORBCOMM Global and its affiliated
partnerships, ORBCOMM USA, L.P. and ORBCOMM International Partners, L.P.
(collectively, "ORBCOMM Global") certain services, which agreement the parties
hereby wish to amend and restate in its entirety.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 - SERVICES TO BE PROVIDED
Section 1.1 - Orbital Services. Orbital shall provide to ORBCOMM
Global the services specified on Schedules 1 and 2 hereto (the "Services").
Section 1.2 - Manner of Furnishing Services. Orbital shall render and
perform the Services as an independent contractor in accordance with the
standards it employs for furnishing such services to itself or its subsidiaries
at the time the Services are provided, subject to the provisions of this
Agreement and to all applicable governmental laws, rules and regulations.
Notwithstanding the foregoing, in providing the Services, Orbital and its
directors, officers and employees shall not be responsible, or have any
liability, for the accuracy, completeness or timeliness of any advice or
service or any report, filing or other document that it or any of them
provides, prepares or assists in preparing except to the extent that any
inaccuracy, incompleteness or untimeliness arises from the gross negligence or
willful misconduct of Orbital or such directors, officers or employees.
ORBCOMM Global shall indemnify, defend and hold harmless Orbital and its
directors, officers and employees from and against any and all damage, cost,
loss, liability and expense (including reasonable attorneys' fees) in
connection with any and all actions or threatened actions arising out of the
performance of the Services, except in circumstances where the party who would
otherwise be indemnified hereunder has not met the standard of care described
in the preceding sentence. In no event shall Orbital or its directors,
officers or employees be liable for any indirect, special or consequential
damages in connection with or arising out of the performance of the Services.
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Section 1.3 - Quality of Services. The parties agree to cooperate in
good faith to resolve on a commercially reasonable basis any disputes that may
arise under this Agreement.
SECTION 2 - PROVISION OF OFFICE SPACE
Section 2.1. - Office Space. Orbital shall provide to ORBCOMM Global,
for its use, the following office space (including the right to use all
conference rooms and common space on an as available basis) (including future
office space described in Section 2.2, "Future Office Space"):
(a) All useable space currently occupied by ORBCOMM
Global (including any affiliates or consultants) in the Steeplechase
Office Building located at 21700 Atlantic Boulevard, Dulles, Virginia
and in the High Bay Building located at 21830 Atlantic Boulevard,
Dulles, Virginia.
Section 2.2. - Future Office Space. Orbital shall use all
commercially reasonable efforts to provide such available office or laboratory
space in Orbital-owned or -leased facilities to ORBCOMM Global as ORBCOMM
Global may reasonably request.
Section 2.3 - Compliance with Leases. ORBCOMM Global agrees to comply
with, and shall benefit from, the terms and conditions of any leases or similar
instruments relating to any facilities in which Orbital provides ORBCOMM Global
space under this Agreement. At ORBCOMM Global's request, Orbital shall provide
ORBCOMM Global with copies of such leases or instruments, including any
amendments.
SECTION 3 - TERM OF AGREEMENT
Subject to the provisions of Section 4 hereof, the term of this
Agreement shall commence on January 1, 1997 and shall continue so long as any
of the categories of Services or Office Space is provided by Orbital to ORBCOMM
Global (the "Term"); provided that, unless otherwise provided regarding
insurance in Schedule 2, ORBCOMM Global shall have the right to terminate the
provision by Orbital of any or all of the Services on furnishing Orbital ninety
(90) days prior written notice, and provided further that ORBCOMM Global shall
have the right to terminate the provision by Orbital of any Office Space
occupied by ORBCOMM Global only upon the expiration of the lease relating to
such Office Space. Upon any termination, Orbital shall invoice ORBCOMM Global
for payment in accordance with Section 4.
SECTION 4 - PRICE
Section 4.1 - Office Space. The total price per month for the Office
Space in any facility shall be based on ORBCOMM Global's occupied useable
square footage as a percentage of total useable square footage in such facility
occupied by ORBCOMM Global and shall be equal to
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ORBCOMM Global's pro rata portion of all Orbital's monthly costs and expenses
relating to the applicable facility, including but not limited to, rent,
mortgage (including interest), operating expenses, taxes, building maintenance,
utilities, janitorial services, landscaping, management fees and leasehold
improvement amortization for interior buildout.
Section 4.2 - Use and Occupancy Services. Except as otherwise
provided in Schedule 1, ORBCOMM Global shall compensate Orbital for the Use and
Occupancy Services as described in Schedule 1 on a cost reimbursable basis
pursuant to this Section 4.2. Under this Section 4.2, "cost" is based on an
allocation to ORBCOMM Global of a portion of the "use and occupancy cost pool"
calculated by Orbital, which allocation shall be based on ORBCOMM Global's pro
rata share of the entire pool's productive labor expenses (defined as gross
labor less personal leave, holiday pay and miscellaneous leave). Orbital shall
provide monthly to ORBCOMM Global a budget versus actual variance report in
order to update the status of pool expenses. When ORBCOMM Global is no longer
receiving any of the services or using any of the assets described in Schedule
1, then ORBCOMM Global shall no longer be required to pay Orbital under this
Section 4.2
Section 4.3 - Administrative and Executive Management Services.
Except as otherwise provided in Schedule 2, ORBCOMM Global shall compensate
Orbital for the Administrative and Executive Management Services as specified
in Schedule 2 on a cost reimbursable basis, based upon costs actually incurred.
Costs actually incurred are based on a salaried rate per hour plus fringe
benefits and overhead.
Section 4.4 - Additional Services. From time to time, Orbital may
provide, at ORBCOMM Global's reasonable request, additional services that are
not currently described in Schedule 1, subject to the parties prior agreement
as to the determination of pricing in accordance with Section 4.2 or Section
4.3.
Section 4.5 - Taxes. The prices set forth herein are exclusive of any
state or local sales, use or property taxes (except to the extent included in
the price charged for office space under Section 4.1 above), or taxes of a
similar nature (excluding any income taxes payable on amounts earned by Orbital
hereunder) that Orbital shall pay either directly to the taxing authority or as
a reimbursement to the other party. Such taxes shall be due and payable by
ORBCOMM Global as and when paid by Orbital.
SECTION 5 - PAYMENT TERMS
Section 5.1 - Payment Date. Within fifteen (15) days after the end of
each calendar month, Orbital shall invoice ORBCOMM Global for Services provided
by Orbital to ORBCOMM Global, together with any unbilled or unpaid charges for
any prior month. Such invoice shall set forth in detail information supporting
the amount of such invoice and shall be due and payable by ORBCOMM Global
within thirty (30) days of receipt thereof by ORBCOMM Global. ORBCOMM Global
shall make payments to Orbital on the first business day of each month for the
Office Space at the price per month determined under Section 4.1
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above. To the extent practicable, Orbital shall cause vendors to directly bill
ORBCOMM Global for any services provided to ORBCOMM Global under this
Agreement. Such bills shall be paid by ORBCOMM Global in accordance with their
terms. Invoices for Office Space and Services not paid within thirty (30) days
of receipt shall be considered delinquent and shall incur a 10% late fee, which
will be based upon the outstanding amount due. Any such late fees incurred are
due and payable by ORBCOMM Global upon receipt of notice of such delinquency.
Section 5.2 - Outstanding Balances. On execution of this Agreement,
ORBCOMM Global shall pay in full to Orbital $460,596.31, which is the amount of
the billed and unpaid balance owed hereunder as of October 31, 1997.
Section 5.3 - Maintenance of Records. Orbital shall maintain those
records necessary to support the amount set forth on its invoices and the
amount charged for the Office Space and Services.
SECTION 6 - MISCELLANEOUS
Section 6.1 - Notices. All notices given under this Agreement must be
in writing and sent by hand delivery, by overnight courier or by facsimile
transmission (answerback received), to:
ORBCOMM Global:
ORBCOMM Global, L.P.
21700 Atlantic Boulevard
Dulles, Virginia 20166
Telecopy: (703) 406-3508
Attention: Bart Snell
Chief Financial Officer
Orbital:
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
Telecopy: 703-406-5000
Attention: Michael P. Keegan
Corporate Controller
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to Orbital or ORBCOMM Global shall
be effective on the date of actual receipt.
Section 6.2 - Binding Effect; Assignment. This Agreement shall be
binding on the parties and their permitted successors and assigns. Neither
this Agreement nor any interests or
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obligations hereunder shall be assigned or transferred (by operation of law or
otherwise) to any person without the prior consent of the other party.
Section 6.3 - Entire Agreement. This Agreement and all attachments
(which are hereby made part of this Agreement) contain the entire understanding
between ORBCOMM Global and Orbital 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.
Section 6.4 - Governing Law. 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 Commonwealth of Virginia, without giving effect to the conflict or
choice of law provisions thereof. Neither party may bring any action for a
claim under this Agreement later than one (1) year after the termination or
expiration of this Agreement.
Section 6.5 - Waiver. It is understood and agreed that no failure or
delay by either ORBCOMM Global or Orbital 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 conditions of any term or condition. All waivers must
be in writing and signed by the party sought to be bound.
Section 6.6 - Severability. If any part of this Agreement shall be
held invalid or unenforceable, such determination shall not affect the validity
or enforceability of any remaining portion, which shall remain in force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion thereof eliminated.
Section 6.7 - 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.
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IN WITNESS WHEREOF, the parties have caused this Administrative
Services Agreement to be executed as of the day and year first above written.
ORBITAL SCIENCES CORPORATION
By:
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Name: Jeffrey V. Pirone
Title: Senior Vice President and
Chief Financial Officer
ORBCOMM GLOBAL, L.P.
By:
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Name: Alan L. Parker
Title: President and Chief Executive Officer
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SCHEDULE 1
USE & OCCUPANCY SERVICES
MIS - ORBCOMM Global shall have access to Orbital's data processing system
during all such times as Orbital's system is in operation and in accordance
with Orbital's customary practices. Orbital personnel shall provide to ORBCOMM
Global data processing support services (including but not limited to hardware
and software maintenance and upgrades, LAN connections and maintenance, data
backup and recovery, etc.) in accordance with the Support Level Agreement
between Orbital and ORBCOMM Global.
Security and Facilities Support - Orbital shall provide security for the
Office Space to ORBCOMM Global in a manner consistent with Orbital's customary
practice. Orbital shall provide mail room and mail distribution services
(including postage and shipping) and janitorial and other facility maintenance
services to ORBCOMM Global in a manner consistent with Orbital's customary
practice. Special shipping requirements of ORBCOMM Global, including but not
limited to, postage for mass mailings and package expenses exceeding $100, will
be billed directly to ORBCOMM Global at cost on actual use.
Supplies and Furniture - Orbital shall provide to ORBCOMM Global all standard
office support requirements (including but not limited to office supplies
including paper, pencils, pens, etc.) and provide ORBCOMM Global employees with
standard office furniture and associated equipment in a manner consistent with
Orbital's customary practice. ORBCOMM Global shall reimburse Orbital for any
increased cost associated with the purchase of non-standard office furniture,
supplies and equipment.
Cafeteria Services - Orbital shall provide ORBCOMM Global employees with
access to and use of the cafeteria located in the Office Space.
Graphics and Duplication Services - Orbital shall provide ORBCOMM Global the
services of Orbital's graphics department and reasonable access to and use of
all Orbital color and non-color photocopy equipment. EFFECTIVE JULY 1, 1997,
COLOR PHOTOCOPY EQUIPMENT LEASE AND USE EXPENSES SHALL BE CHARGED AS AN
ADMINISTRATIVE SERVICE. SEE GRAPHICS AND DUPLICATION SERVICES ON SCHEDULE 2.
Taxes - Orbital shall maintain appropriate and necessary records, and shall
remit such records to ORBCOMM Global as requested by ORBCOMM Global, to enable
ORBCOMM Global to determine all property, sales and use taxes attributable to
ORBCOMM Global, in a manner consistent with Orbital's customary practice.
ORBCOMM Global shall be responsible for appropriate, necessary and timely tax
filings and remittances, and shall hold Orbital harmless in the event it does
not exercise due care in fulfilling this responsibility.
Telephone Switchboard and Communication Services - Orbital shall provide
general receptionist services to ORBCOMM Global and provide access to local,
long distance and
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WATS service telephone lines and equipment used to access such communication
services of the type used by ORBCOMM employees on the date of this Agreement.
Orbital shall remain responsible for such communications equipment, including
taking all reasonable actions to assure that such equipment remains in good
working order.
Parking - Orbital shall provide parking space in the Office Space parking lots
for each employee of ORBCOMM Global, except that a total of seven parking
spaces in the Steeplechase building underground parking garage will be provided
for members of ORBCOMM Global's executive management.
Beverages - Orbital shall provide employees of ORBCOMM Global coffee and soft
drinks in the same manner as such items are available to Orbital employees.
Training - Orbital shall provide employees of ORBCOMM Global access to any
general facility related training programs sponsored by Orbital including but
not limited to sexual harassment and EEOC training, management training and IS
software training.
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SCHEDULE 2
ADMINISTRATIVE SERVICES
Accounting - ORBCOMM Global shall have access to Orbital's DELTEK accounting
system during all such times as such system is in operation and in accordance
with Orbital's customary practices. Orbital personnel shall provide to ORBCOMM
Global support services for the DELTEK accounting system. ORBCOMM Global shall
reimburse Orbital for the DELTEK site license. The provision by Orbital of
this service shall terminate on December 31, 1997.
Payroll Processing - Orbital shall provide all payroll processing services
(including but not limited to timesheet collection and data entry, labor
distribution report preparation and distribution, payroll check preparation and
distribution, payroll withholding calculations, deposits and reporting, etc.)
to ORBCOMM Global in a manner consistent with Orbital's customary practice.
Purchasing, Receiving and Shipping/Accounts Payable - Orbital shall provide
all purchasing services (including but not limited to purchase request
collection and data entry, purchase order preparation and ordering, goods
receiving and verification, property control and storage, accounts payable
voucher processing, cash disbursement and check preparation and distribution,
etc.) to ORBCOMM Global in a manner consistent with Orbital's customary
practice.
Access to Orbital Accounting Records - Orbital shall provide representative(s)
of ORBCOMM Global, who shall be designated in writing by ORBCOMM Global at
least seven (7) days in advance, access to all appropriate accounting records
of Orbital relating to ORBCOMM Global in a manner that allows such
representative(s) to obtain any and all accounting information relating to the
books and records of ORBCOMM Global, in a manner consistent with Orbital's
customary practice.
Personnel Services - Orbital shall provide all personnel services (including
but not limited to recruiting services, relocation services, new employee
administration, etc.) to ORBCOMM Global in a manner consistent with Orbital's
customary practice.
Insurance - Orbital shall provide (a) health insurance, (b) property and
casualty insurance, (c) workers compensation insurance, (d) auto liability
insurance, (e) general liability insurance, (f) fiduciary liability insurance,
(g) employee dishonesty insurance, (h) transit insurance and (i) aviation
products insurance to ORBCOMM Global until such time that ORBCOMM Global can
commercially procure its own insurance at a rate close to Orbital's, or at such
time the partners of ORBCOMM Global determine that ORBCOMM Global should obtain
its own insurance. The insurance described above shall be provided on a
cost-reimbursable basis.
A decision to not include ORBCOMM Global's employees in Orbital's health plan
must be made in September for the upcoming insurance year. A decision to not
include ORBCOMM in Orbital's property and casualty insurance must be made by
January 15 of the applicable year.
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To the fullest extent permissible under the terms of the relevant insurance
policies, Orbital shall continue to allow ORBCOMM Global employees to
participate and have the coverage provided by the insurance policies in a
manner consistent with current practice until such time Orbital, with agreement
by ORBCOMM Global, determines otherwise. Orbital shall provide administrative
services with respect to ORBCOMM Global's 401(k) plan. Orbital shall provide
to ORBCOMM Global all benefit management and administration services with
respect to the foregoing in a manner consistent with Orbital's customary
practice.
Graphics and Duplication Services - Effective July 1, 1997 Orbital shall
provide ORBCOMM Global the use of all Orbital color photocopy equipment under
this Administrative Services category.
Special Services - Upon the request of ORBCOMM Global from time to time,
Orbital shall provide executive management services (including but not limited
to legal advice, financial advice, operating advice, public relations support,
regulatory support, lobbying activities, government relations support, etc.) to
ORBCOMM Global in a manner consistent with Orbital's customary practice.
General Administration - Services provided by Orbital with respect to
administering this Agreement shall be charged under this category.
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