Construction And Operations Agreement W/occ

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:


2
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 respe ...