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EXHIBIT 10.19
COMPANY ADMINISTRATIVE SERVICES AGREEMENT
This Company Administrative Services Agreement ("Agreement")
is entered into as of ________, 1998 by and between ORBCOMM Global, L.P., a
Delaware limited partnership ("ORBCOMM Global") and ORBCOMM Corporation, a
Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company has requested that ORBCOMM Global, and
ORBCOMM Global has agreed to, provide to the Company certain administrative and
other related services.
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 - Services. ORBCOMM Global shall provide to the
Company the services specified on Schedules 1 and 2 hereto (the "Services").
Section 1.2 - Manner of Furnishing Services. ORBCOMM Global
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, ORBCOMM
Global and its 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 ORBCOMM Global or such officers or employees. The
Company shall indemnify, defend and hold harmless ORBCOMM Global and its
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 ORBCOMM Global or its officers or
employees be liable for any indirect, special or consequential damages in
connection with or arising out of the performance of the Services.
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.
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SECTION 2 - PROVISION OF OFFICE SPACE
Section 2.1. - Office Space. ORBCOMM Global shall provide to
the Company, for its use on an as-needed basis, office space at ORBCOMM
Global's facilities located at 2455 Horse Pen Road, Suite 100, Herndon,
Virginia 20171 (the "Office Space").
Section 2.2 - Compliance with Leases. The Company agrees to
comply with, and shall benefit from, the terms and conditions of any leases or
similar instruments relating to any facilities in which ORBCOMM Global provides
the Company space under this Agreement. At the Company's request, ORBCOMM
Global shall provide the Company 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 March 23, 1998 and shall continue so long as
any of the categories of Services or Office Space is provided by ORBCOMM Global
to the Company (the "Term"); provided that, the Company shall have the right to
terminate the provision by ORBCOMM Global of any or all of the categories of
Services or the Office Space on furnishing ORBCOMM Global ninety (90) days
prior written notice. On termination of this Agreement for any reason, ORBCOMM
Global shall invoice ORBCOMM for any remaining amounts due under 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 the Company's occupied useable
square footage as a percentage of total useable square footage in such facility
occupied by the Company and shall be equal to the Company's pro rata portion of
all ORBCOMM Global'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. The Company shall
compensate ORBCOMM Global 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 the Company of a portion
of the "use and occupancy cost pool" calculated by ORBCOMM Global, which
allocation shall be based on the Company's pro rata share of the entire pool's
productive labor expenses (defined as gross labor less personal leave, holiday
pay and miscellaneous leave). On the Company's request, ORBCOMM Global shall
provide monthly to the Company a budget versus actual variance report in order
to update the status of pool expenses. When the Company is no longer receiving
any of the Use and Occupancy Services or using any of the assets described in
Schedule 1, then the Company shall no longer be required to pay ORBCOMM
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Global under this Section 4.2
Section 4.3 - Administrative and Executive Management
Services. The Company shall compensate ORBCOMM Global for the Administrative
and Executive Management Services as specified in Schedule 2 on a cost
reimbursable basis, based on costs actually incurred. Costs actually incurred
for labor are based on a salaried rate per hour plus fringe benefits and
overhead.
Section 4.4 - Additional Services. From time to time, ORBCOMM
Global may provide, at the Company'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 ORBCOMM Global hereunder) that ORBCOMM Global shall pay either
directly to the taxing authority or as a reimbursement to the other party.
Such taxes shall be due and payable by the Company as and when paid by ORBCOMM
Global.
SECTION 5 - PAYMENT TERMS
Section 5.1 - Payment Date. Within fifteen (15) days after
the end of each calendar month, ORBCOMM Global shall invoice the Company for
Services provided by ORBCOMM Global to the Company, 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 the Company within thirty (30) days of receipt thereof by the Company. The
Company shall make payments to ORBCOMM Global on the first business day of each
month for the Office Space at the price per month determined under Section 4.1
above. To the extent practicable, ORBCOMM Global shall cause vendors to
directly bill the Company for any services provided to ORBCOMM under this
Agreement. Such bills shall be paid by the Company 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 on the outstanding amount due. Any such late fees incurred are
due and payable by the Company on receipt of notice of such delinquency.
Section 5.2 - Maintenance of Records. ORBCOMM Global 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:
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ORBCOMM:
ORBCOMM Corporation
2455 Horse Pen Road
Suite 100
Herndon, Virginia 20171
Facsimile: (703) 406-5308
Attention: President and Chief Executive Officer
ORBCOMM Global:
ORBCOMM Global, L.P.
2455 Horse Pen Road
Suite 100
Herndon, Virginia 20171
Facsimile: 703-406-5933
Attention: Senior Vice President and General Counsel
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to ORBCOMM Global or ORBCOMM 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 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 and ORBCOMM Global 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 or ORBCOMM Global or ORBCOMM Global 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
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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.
ORBCOMM GLOBAL, L.P.
By:
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Name: Robert F. Latham
Title: President and Chief Operating Officer
ORBCOMM CORPORATION
By:
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Name: Scott L. Webster
Title: President and Chief Executive Officer
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SCHEDULE 1
USE & OCCUPANCY SERVICES
MIS - ORBCOMM Global shall provide the Company access to ORBCOMM Global's data
processing system during all such times as such system is in operation and in
accordance with ORBCOMM Global's customary practices.
Security and Facilities Support - ORBCOMM Global shall provide security for the
Office Space in a manner consistent with ORBCOMM Global's customary practice.
ORBCOMM Global shall provide mail room and mail distribution services
(including postage and shipping) and janitorial and other facility maintenance
services to the Company in a manner consistent with ORBCOMM Global's customary
practice. Special shipping requirements of the Company, including but not
limited to, postage for mass mailings and package expenses exceeding $100, will
be billed directly to the Company at cost on actual use.
Supplies and Furniture - ORBCOMM Global shall provide to the Company all
standard office support requirements (including but not limited to office
supplies including paper, pencils, pens, etc.) in a manner consistent with
ORBCOMM Global's customary practice. The Company shall reimburse ORBCOMM
Global for any increased cost associated with the purchase of non-standard
office furniture, supplies and equipment.
Telephone Switchboard and Communications Services - ORBCOMM Global shall
provide general receptionist services to the Company and provide access to
local, long distance and WATS service telephone lines and equipment (including
facsimile equipment) used to access such communications services of the type
used by ORBCOMM Global employees on the date of this Agreement. ORBCOMM Global
shall remain responsible for such communications equipment, including taking
all reasonable actions to assure that such equipment remains in good working
order.
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SCHEDULE 2
ADMINISTRATIVE AND EXECUTIVE MANAGEMENT SERVICES
Accounting - ORBCOMM Global shall provide to the Company the services of its
financial and accounting staff to perform any and all accounting functions of
or required to be performed by the Company in the ordinary course of business,
including but not limited to, maintenance of the Company's books and records,
provision of payment services and preparation of the Company's financial
statements. ORBCOMM Global shall maintain appropriate and necessary records to
enable it to perform such functions on behalf of the Company, in a manner
consistent with ORBCOMM Global's customary practice.
Taxes - ORBCOMM Global shall prepare and file or cause to be prepared and
filed, on behalf of the Company, any and all federal, state, local and foreign
income, property, sales and use or other applicable tax returns required to be
filed by the Company; provided, that the Company shall be required to make any
and all associated payments directly to the taxing authority. ORBCOMM Global
shall maintain appropriate and necessary records to enable it to determine all
income, property, sales and use taxes attributable to the Company, in a manner
consistent with ORBCOMM Global's customary practice. ORBCOMM Global shall be
responsible for making appropriate, necessary and timely filings of any and all
such tax returns on behalf of the Company, and shall hold the Company harmless
in the event it does not exercise due care in fulfilling this responsibility.
The Company shall be responsible for making appropriate, necessary and timely
remittances and shall hold ORBCOMM Global harmless in the event it does not
exercise due care in fulfilling this responsibility.
Legal Services - ORBCOMM Global shall provide to the Company the services of
its legal staff to perform any and all legal services required to be performed
on behalf of the Company in the ordinary course of business, including but not
limited to, preparation and filing of any and all reports required to be filed
by the Company with the Securities and Exchange Commission, preparation of
annual reports to the shareholders of the Company and assistance in the
preparation of notices for and minutes of meetings of the Board of Directors
and shareholders of the Company. To the extent necessary, ORBCOMM Global shall
maintain appropriate and necessary records to enable it to fulfill such
responsibility, consistent with ORBCOMM Global's customary practice.
Insurance - ORBCOMM Global shall provide (a) directors and officers 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 the Company. The insurance described
above shall be provided on a cost-reimbursable basis.
Meeting Facilities - ORBCOMM Global shall provide to the Company, on reasonable
prior request of the Company and to the extent available, the use of conference
rooms and/or common space included in the Office Space or otherwise occupied by
ORBCOMM Global in support of meetings held by the Company in the ordinary
course of business, including but not limited to, meetings of the Board of
Directors or shareholders of the Company. Any services provided by ORBCOMM
Global in connection with any such meetings, including food and beverages and
other associated services, will be billed directly to the Company at cost.
Graphics and Duplication, Other Equipment - ORBCOMM Global shall provide the
Company the use of any and all black-and-white and color photocopy,
audio-visual and other similar equipment of ORBCOMM Global to the extent
required in connection with the ordinary course
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activities of the Company.
Special Services - On the request of the Company from time to time, ORBCOMM
Global shall provide additional 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 the Company in a manner consistent with ORBCOMM
Global's customary practice.
General Administration - Services provided by ORBCOMM Global with respect to
administering this Agreement shall be charged under this category.
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