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EXHIBIT 10.2
ORBCOMM SYSTEM CONSTRUCTION AND OPERATIONS AGREEMENT
This ORBCOMM System Construction and Operations Agreement (the
"Agreement") is made and entered into as of ________ __, 1998, by and between
Orbital Communications Corporation, a Delaware corporation ("OCC"), and ORBCOMM
Global, L.P., a Delaware limited partnership ("ORBCOMM") and amends and
restates the Restated ORBCOMM System Construction Agreement, dated as of
September 12, 1995, as amended by that certain Amendment No. 1 to Restated
ORBCOMM System Construction Agreement, dated as of July 1, 1996, in each case,
by and between OCC and ORBCOMM.
WITNESSETH
WHEREAS, Orbital Sciences Corporation, a Delaware corporation
("Orbital"), OCC, Teleglobe Inc., a Canadian corporation ("Teleglobe"),
Teleglobe Mobile Partners, a Delaware general partnership ("Teleglobe Mobile"),
ORBCOMM, ORBCOMM USA, L.P., a Delaware limited partnership, and ORBCOMM
International Partners, L.P., a Delaware limited partnership, have entered into
agreements for the development, construction, operation and marketing of a
low-Earth orbit satellite communications system intended to provide two-way
data and message communications and position determination services throughout
the world (the "ORBCOMM System") and related activities in connection
therewith;
WHEREAS, on October 20, 1994, May 17, 1995, June 12, 1995 and March
31, 1998, OCC received from the FCC (as such term is hereinafter defined),
licenses authorizing OCC to construct, launch and operate 48 low-Earth orbit
satellites and to operate the associated ground infrastructure and subscriber
units in the United States (the "FCC Licenses"), for the purpose of providing
two-way data and message communications and position determination services in
the United States;
WHEREAS, OCC and ORBCOMM are parties to that certain Restated ORBCOMM
System Construction Agreement, dated as of September 12, 1995, as amended (the
"System Construction Agreement"), pursuant to which ORBCOMM has agreed to
develop, construct and launch satellites and develop and construct certain
other assets comprising the ORBCOMM System in exchange for certain
consideration, including the right to market, sell, lease and franchise ORBCOMM
System output capacity in certain locations; and
WHEREAS, OCC and ORBCOMM desire to amend and restate the System
Construction Agreement.
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:
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ARTICLE 1
DEFINITIONS
Except as otherwise specifically defined herein, capitalized terms
shall have the meanings ascribed to such terms in Appendix C attached to the
Restated Master Agreement dated as of September 12, 1995 among Orbital, OCC,
Teleglobe and Teleglobe Mobile, as amended by that certain Amendment No. 1 to
Restated Master Agreement dated as of February 5, 1997 and that certain
Amendment No. 2 to Restated Master Agreement of even date herewith and as it
may be further amended or restated from time to time (the "Master Agreement"),
which Appendix is incorporated herein by reference.
ARTICLE 2
TERM
The term of this Agreement shall commence on the date hereof and shall
continue until such time as is mutually agreeable to OCC and ORBCOMM.
ARTICLE 3
USE OF SYSTEM CAPACITY AND
CONSTRUCTION AND OPERATION OF SYSTEM ASSETS
SECTION 3.1. USE OF SYSTEM CAPACITY.
(a) Subject to the terms and conditions of this
Agreement, OCC hereby grants to ORBCOMM, which shall in turn be authorized to
grant to third parties, including its Resellers and Licensees: (i) the right to
market, sell, lease and franchise all ORBCOMM System output capacity worldwide
and to use the System Assets located in the United States; and (ii) a
non-exclusive license to use all service marks, trademarks and trade names of
OCC relating to the ORBCOMM System in the course of ORBCOMM's (or any of such
third party's) business, for advertising, promotional or sales literature, or
any other form of publicity for the duration of this Agreement. ORBCOMM agrees
(and shall use all commercially reasonable efforts to require such third
parties to agree) (A) to use such service marks, trademarks and trade names in
its advertising, promotional and sales materials that refer to OCC or the
ORBCOMM System or any aspect thereof and to ensure that such use conforms (x)
with respect to ORBCOMM's use, to OCC's written requirements for display of
such logos, service marks and trademarks, including registry and trademark
symbols, and (y) with respect to such third parties' use, to ORBCOMM's written
requirements for display of such logos, service marks and trademarks, including
registry and trademark symbols, which requirements shall be in conformance with
ORBCOMM's Graphic Identity Manual, then in effect, and (B) to obtain the prior
written consent of (x) OCC with respect to ORBCOMM's use, and (y) ORBCOMM with
respect to such third parties' use, for such advertising, promotional and sales
materials, which approval shall not be unreasonably withheld, provided that if
such use complies with the terms of ORBCOMM's Graphic Identity
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Manual or any replacement document thereto, the advance written approval of OCC
or ORBCOMM, as the case may be, shall not be required.
(b) ORBCOMM is hereby granted the right to manage and operate
the ORBCOMM System on behalf of OCC, and ORBCOMM shall provide OCC management
and operational services, including the performance of tracking, telemetry and
control functions, with respect to the ORBCOMM System, all subject to the
oversight, supervision and control of OCC. Notwithstanding any provision of
this Agreement to the contrary, each of OCC and ORBCOMM acknowledges and agrees
that: (i) OCC is in sole control of the FCC Licenses and the ORBCOMM System;
and (ii) OCC is required by FCC regulations to be in sole control of the FCC
Licenses so long as it is the licensee under the FCC Licenses and, accordingly,
that it has the right, among other things, to order the discontinuance of
operations to avoid any violations of FCC rules and regulations and the right
to unfettered access to all facilities, sites and equipment used in the
operation of the ORBCOMM System. ORBCOMM further acknowledges and agrees that
OCC has ultimate control over all decisions affecting the ORBCOMM System
including, but not limited to, the employment, supervision and dismissal of
personnel, notwithstanding any other provision of any of the Definitive
Agreements. ORBCOMM shall assist OCC in complying with all applicable Federal,
state and local rules and regulations regarding operation of the ORBCOMM
System, including all FCC requirements set forth in any of the FCC Licenses.
SECTION 3.2. CONSIDERATION FOR USE OF SYSTEM CAPACITY. In
consideration of the grant to ORBCOMM of the right to market, sell, lease and
franchise ORBCOMM System output capacity worldwide and to use the System Assets
located in the United States, ORBCOMM hereby agrees as follows:
(a) ORBCOMM shall (i) develop, construct, launch and
operate the Satellites comprising the ORBCOMM System and (ii) develop,
construct and operate the other assets comprising the ORBCOMM System located
in the United States, all of which assets shall be procured by ORBCOMM pursuant
to the System Agreement or the Procurement Contract dated as of September 12,
1995, as it may be amended from time to time (the "Procurement Agreement"), in
each case between OCC and ORBCOMM, as the case may be.
(b) ORBCOMM shall pay to OCC the following cash
consideration: (i) for the period commencing on the date hereof and ending on
December 31, 1998, ORBCOMM shall pay OCC the sum of $100,000; $50,000 of which
shall be payable on August 1, 1998 and $50,000 of which shall be payable on
December 1, 1998, and (ii) for the periods following December 31, 1998, ORBCOMM
shall pay OCC such fee as is mutually agreeable to OCC and ORBCOMM, as
determined by negotiation in good faith by each of OCC and ORBCOMM.
SECTION 3.3 INSURANCE ON SYSTEM ASSETS. Insurance on the ORBCOMM
System and the System Assets shall be procured by ORBCOMM or, at ORBCOMM's
discretion, by Orbital for ORBCOMM's account in such amounts, at such times and
to cover such risks as ORBCOMM shall determine in its sole discretion.
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SECTION 3.4 TRANSFER OF ORBCOMM TRADEMARK AND SERVICE MARK. OCC
agrees to transfer and assign to ORBCOMM, at ORBCOMM's expense, the
applications for or the registered trademark and registered service mark
"ORBCOMM", which transfer and assignment shall occur on terms and conditions to
be mutually agreed but in any event at such time as such registered trademark
or service mark comes up for renewal in the country or territory where it is
registered.
SECTION 3.5 PATENT INDEMNIFICATION. ORBCOMM shall defend, indemnify
and hold harmless OCC and its respective successors and assigns from and
against any claim with respect to an infringement or other violation of any
copyright, trademark or patent or other validly registered enforceable
intellectual property right of any third party for any items ORBCOMM has
constructed for OCC pursuant to the authority granted in Section 3.2 hereof but
only to the same extent as the indemnification received by ORBCOMM from
Orbital, if any, under Section 9.4 of the Procurement Agreement.
ARTICLE 4 - MISCELLANEOUS
SECTION 4.1 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, USA, without
giving effect to the provisions, policies or principles thereof relating to
choice or conflict of laws.
SECTION 4.2 DISPUTE RESOLUTION. Any controversy or claim that may
arise under, out of, in connection with or relating to this Agreement shall be
resolved in accordance with Section 13.4 of the Master Agreement.
SECTION 4.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes any prior writing, agreement or understanding among the parties with
respect to the subject matter hereof.
SECTION 4.4 AMENDMENT: WAIVER. Except as provided otherwise herein,
this Agreement may not be amended nor may any rights hereunder be waived except
by an instrument in writing signed by the parties hereto.
SECTION 4.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding on and shall inure to the benefit of the parties and their respective
successors and permitted assigns. Neither this Agreement nor any interests or
obligations hereunder shall be assigned or transferred (by operation of law or
otherwise) by either party to any Person without the prior written consent of
the other party.
SECTION 4.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts of the signature pages, each of which shall be
considered an original, but all of which together shall constitute one and the
same instrument.
SECTION 4.7 HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
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SECTION 4.8 NOTICES. Except as otherwise specified herein, all
notices, requests and other communications required to be delivered to any
party hereunder shall be in writing (including any facsimile transmission or
similar writing), and shall be sent by facsimile or delivered in person
addressed as follows:
(a) If to OCC, at:
21700 Atlantic Boulevard
Dulles, Virginia 20166
Attention: President
Facsimile: (703) 406-3508
(b) If to ORBCOMM, at:
2455 Horse Pen Road, Suite 100
Herndon, Virginia 20171
Attention: Senior Vice President and General Counsel
Facsimile: (703) 406-5933
with copies to:
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
Attention: General Counsel
Facsimile: (703) 406-5572
and
Teleglobe Inc.
1000 rue de la Gauchetiere ouest
Montreal, Quebec
Canada H3B 4X5
Attention: Vice President, Legal Affairs and Corporate
Secretary
Facsimile: (514) 868-7438
or to such other persons or addresses as any party may designate by written
notice to the others. Each such notice, request or other communication shall be
effective (i) if given by facsimile, when such facsimile is transmitted and the
appropriate answerback is received, (ii) if given by reputable overnight
courier, one (1) business day after being delivered to such courier, or (iii)
if given by any other means, when received at the address specified in this
Section 4.8.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
ORBITAL COMMUNICATIONS ORBCOMM GLOBAL, L.P.
CORPORATION
By: By:
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Scott L. Webster Robert F. Latham
President President
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