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EXHIBIT 10.25
ASSET TRANSFER AGREEMENT
BETWEEN
IRIDIUM LLC
AND
IRIDIUM OPERATING LLC
DATED AS OF DECEMBER 18, 1997
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TABLE OF CONTENTS
PAGE
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INTRODUCTION........................................................................................... 1
ARTICLE I
DEFINITIONS AND INTERPRETIVE RULES
Section 1.01. Definitions................................................................. 1
Section 1.02. General Interpretive Rules.................................................. 3
ARTICLE II
ASSIGNMENT AND ASSUMPTION
Section 2.01. Assignment of Assets........................................................ 4
Section 2.02. Assumption of Liabilities................................................... 4
Section 2.03. Issuance of Membership Interests............................................ 4
Section 2.04. Exact Effective Time........................................................ 4
ARTICLE III
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS OF ASSIGNOR
Section 3.01. Organization and Qualification.............................................. 4
Section 3.02. Authority................................................................... 4
Section 3.03. No Conflicts, Filings and Violations of Regulations......................... 5
Section 3.04. No Consents or Violations of Contracts, etc................................. 5
Section 3.05. Ownership of Assets......................................................... 5
Section 3.06. Litigation.................................................................. 5
Section 3.07. Investment Intent........................................................... 5
Section 3.08. Condition of the Assets..................................................... 5
Section 3.09. Unknown Liabilities......................................................... 5
Section 3.10. No Indemnity................................................................ 6
Section 3.11. Contracts................................................................... 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
Section 4.01. Organization and Qualification.............................................. 6
Section 4.02. Authority................................................................... 6
Section 4.03. Investment Intent........................................................... 6
ARTICLE V
EMPLOYEES
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Section 5.01. Employees................................................................... 6
ARTICLE VI
COVENANTS
Section 6.02. Consents and Approvals Relating to Liabilities.............................. 7
Section 6.03. Taxes and Recording Fees.................................................... 7
Section 6.04. Expenses.................................................................... 7
Section 6.05. Commercial Best Efforts..................................................... 7
Section 6.06. Compliance with Applicable Bulk Transfer Laws............................... 8
Section 6.07. Books and Records........................................................... 8
Section 6.08. Further Assurances.......................................................... 8
ARTICLE VII
CONDITIONS
Section 7.01. Representations and Warranties.............................................. 8
Section 7.02. Performance of Obligations.................................................. 9
Section 7.03. Consents of Third Parties................................................... 9
Section 7.04. Assumption of Liabilities of Assignor....................................... 9
Section 7.05. Insurance Coverage.......................................................... 9
ARTICLE VIII
CLOSING
Section 8.01. Closing..................................................................... 9
Section 8.02. Documents to be Delivered by Assignor....................................... 9
Section 8.03. Documents to be Delivered by Assignee....................................... 10
ARTICLE IX
TERMINATION
Section 9.01. Termination................................................................. 10
Section 9.02. Effect of Termination....................................................... 10
ARTICLE X
GENERAL PROVISIONS
Section 10.01. Amendments.................................................................. 11
Section 10.02. Extension; Waiver........................................................... 11
Section 10.03. Governing Law............................................................... 11
Section 10.04. No Third Party Beneficiaries................................................ 11
Section 10.05. Power of Attorney........................................................... 11
Section 10.06. Notices..................................................................... 11
Section 10.07. Severability................................................................ 12
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Section 10.08. Counterparts................................................................ 12
Section 10.09. Entire Agreement............................................................ 12
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ASSET TRANSFER AGREEMENT
This ASSET TRANSFER AGREEMENT ("AGREEMENT") is made as of
December 18, 1997, by and between IRIDIUM LLC, a Delaware limited liability
company ("ASSIGNOR" or "IRIDIUM"), and IRIDIUM OPERATING LLC, a newly-formed
Delaware limited liability company ("ASSIGNEE" or "OPERATING").
INTRODUCTION
Assignor is the sole parent company of Iridium Capital
Corporation, a Delaware corporation ("IRIDIUM CAPITAL"), Iridium Roaming LLC, a
Delaware limited liability company ("IRIDIUM ROAMING"), and Iridium IP LLC, a
Delaware limited liability company ("IRIDIUM IP").
Assignor desires to reorganize its business structure (the
"REORGANIZATION") by, among other things, forming a limited liability company,
Assignee, which shall then become a wholly-owned subsidiary of Assignor, and
transferring substantially all its assets and liabilities to Assignee, including
without limitation its interest in Iridium Capital, Iridium Roaming and Iridium
IP.
NOW, THEREFORE, in consideration of the premises and covenants
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound, agree as follows:
ARTICLE
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DEFINITIONS AND INTERPRETIVE RULES
Section 1.01. Definitions.
In this Agreement:
"AGREEMENT" means this Asset Transfer Agreement, as executed
by the parties hereto as of the date first written above, and the attached
Schedules, and if amended as permitted hereby, as so amended.
"ASSETS" means those assets, tangible and intangible, to the
extent owned or leased by the Assignor as of the Closing Date, listed in
Schedule 1.01A.
"ASSIGN" includes to assign, transfer or convey.
"ASSUME" includes to assume, accept, become obligated or
otherwise agree to pay, perform or discharge a liability, debt or obligation.
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"BEST EFFORTS" means all efforts that are commercially
reasonable to take.
"BOOKS AND RECORDS" means all books, records and files
relating to the Assignor's business, Assets or Liabilities, including Permits,
employee records, logs, manuals, instruction materials, plans, drawings, product
and manufacturers' warranties, accounting, financial and billing records,
computer software and programs, in each case whether or not in written or
electronic format.
"CLOSING" and "CLOSING DATE" have the meanings set forth in
Section 8.01.
"CONSENT" means, with respect to the Assignment of a Contract
or Permit, the consent, approval, waiver or contract amendment necessary to
Assign such contract or Permit pursuant to its terms or applicable law.
"CONTRACT" means any contract, agreement, lease or Insurance
Policy entered into between Assignor and any third party listed in Schedule
1.01A.
"ENCUMBRANCE" means any charge, claim, equitable interest,
lien, option, pledge, security interest, right of first refusal or restriction
of any kind, including any restriction on use, voting, transfer, receipt of
income, or the exercise of any other attribute of ownership.
"EXCLUDED ASSETS" means those assets, tangible and intangible,
to the extent owned or leased by the Assignor as of the Closing Date, listed in
Schedule 1.01B, and any other assets of Assignor not listed in Schedules 1.01A
and 1.01B.
"EXCLUDED LIABILITIES" means those liabilities and obligations
of Assignor, as of the Closing Date, listed in Schedule 1.01D.
"GATEWAY OPERATOR" means any business entity which has entered
into an agreement entitled "Gateway Authorization Agreement" with Assignor.
"IWCL" means Iridium World Communications Ltd., a Bermuda
company.
"INCLUDING" means "including but not limited to."
"INSURANCE POLICIES" means all insurance policies of Assignor
as of the Closing Date insuring the Assets, operations or personnel of the
Assignor or indemnifying losses or liabilities of the Assignor or its personnel,
including satellite insurance, launch insurance, control facility insurance,
general liability insurance, directors' and officers' liability insurance,
employment practices liability insurance, executive life insurance, crime
insurance, auto insurance, property insurance and workmen's compensation
insurance.
"LIABILITIES" means those liabilities and obligations of
Assignor as of the Closing Date, fixed or contingent, known or unknown, accrued
or current, listed on Schedule 1.01C.
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"MANAGEMENT SERVICES AGREEMENT" means the Management Services
Agreement, as amended and restated on December 18, 1997, by and among IWCL,
Assignor and Assignee, as amended from time to time.
"MATERIAL ADVERSE EFFECT" means, with respect to an entity, an
event, effect, change or circumstances that is materially adverse to the assets,
liabilities, business or financial condition of such entity.
"PERMITS" means all licenses, permits and other authorizations
issued by any federal, state, local, foreign or other governmental authority,
agency or instrumentality.
"SERVICE PROVIDER" means any business entity which has entered
into an agreement with a Gateway Operator pursuant to which such entity shall
provide telecommunications services and interconnections between the Gateway
Operator's facilities and end-user subscribers, directly or indirectly, and
billing services in connection with the furnishing of such telecommunications
services. "Service Provider" includes any Gateway Operator which also directly
provides telecommunications services to or billing services in regard to
subscribers.
"SPACE SYSTEM UNDER CONSTRUCTION" means the worldwide
telecommunications system being developed, created, built, installed, operated
and maintained by Assignor, directly and pursuant to Contracts, including all of
its satellites, whether delivered, in orbit or to be delivered under Contracts,
all Assignor's telecommunications facilities, equipment and software used in
connection with such system, all inventories of equipment, materials, work in
progress, goods, supplies owned by Assignor and used in the development,
creation, building, installation, operation and maintenance of such system, all
rights and privileges under Contracts and all purchase orders for such
facilities, equipment and software, and all Permits, which are related to the
development, creation, building, installation, operation or maintenance of such
system, but not including any Excluded Assets.
"TAXES" means all taxes, levies, assessments, duties, license
fees or other charges, including income, franchise, sales, profits, excise,
recording, transfer, gross receipts, use, real or personal property, gains,
payroll, withholding, social security, stamp or ad valorem taxes, imposed upon
Assignor or its Assets by any taxing authority of any federal, state, local or
foreign jurisdiction which are due and unpaid as of the Closing Date.
Section 1.02. General Interpretive Rules. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) the terms defined in this Article include the plural,
the singular and variations of similar import; (ii) the use of any gender herein
shall be deemed to include the other genders; (iii) references herein to
"Articles," and "Sections" and "Schedules," without reference to a document, are
to designated Articles and Sections of, and to Schedules to, this Agreement;
(iv) the words "herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular provision; and (v)
references to the "date of this Agreement" and the "date hereof" refers to the
date first written above.
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ARTICLE II
ASSIGNMENT AND ASSUMPTION
Section 2.01. Assignment of Assets. At the Closing, Assignor
shall Assign to Assignee, and Assignee shall accept, acquire and receive from
Assignor, all of Assignor's right, title and interest in and to the Assets,
subject to any Encumbrances that may exist on the Assets.
Section 2.02. Assumption of Liabilities. At the Closing, in
consideration of the Assets to be transferred to Assignee hereunder, Assignee
shall Assume the Liabilities and Assignor shall be relieved of the Liabilities,
as provided in Section 6.02. The Assumption of Liabilities by Assignee shall not
defeat, impair or limit in any way any right or remedy of Assignee to contest or
dispute the validity or amount of any Liability or to assert any defense
thereto.
Section 2.03. Issuance of Membership Interests. At the
Closing, Assignee shall issue and deliver all of its authorized membership
interests to Assignor.
Section 2.04. Exact Effective Time. Unless otherwise expressly
provided herein, the exact effective time of the Assignment of the Assets by
Assignor under Section 2.01, the acceptance of the Assets by Assignee under
Section 2.01, the assumption of the Liabilities by Assignee under Section 2.02
and the release of Assignor from the Liabilities under Section 2.02, which is
stated herein to be "at the Closing," shall, subject to the satisfaction of the
conditions set forth in Article VII, be 12:01 a.m. of the morning of the Closing
Date.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS OF ASSIGNOR
Assignor represents and warrants to Assignee as follows:
Section 3.01. Organization and Qualification. Assignor is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware. Assignor has all requisite power and
authority to own, lease and operate the assets owned and leased by it, and to
carry on its business as now being conducted. Assignor is duly qualified to do
business and is in good standing in each jurisdiction in which the property is
owned, leased or operated by it, or the nature of the business conducted by it,
makes such qualification necessary.
Section 3.02. Authority. Assignor has the requisite power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation by Assignor of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of
Assignor, and no other proceedings on the part of Assignor are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
This Agreement, when duly executed and delivered by Assignor and Assignee, shall
constitute the valid and binding obligation of Assignor.
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Section 3.03. No Conflicts, Filings and Violations of
Regulations. Except as set forth in Schedule 3.03, neither the execution,
delivery or performance of this Agreement by Assignor nor the consummation of
the transactions contemplated hereby will (i) conflict with or result in any
breach of any provision of the articles of organization and limited liability
company agreement of Assignor, (ii) require any filing with, or Permit,
authorization, consent or approval of any court, tribunal, agency or other
governmental or regulatory authority, or (iii) violate any order, injunction,
decree, statute, rule or regulation applicable to Assignor or by which any Asset
of Assignor is bound or affected except, in the case of clause (iii), for
violations or other occurrences that would not prevent or delay consummation of
this Agreement or the transactions contemplated hereby in any material respect,
including, without limitation, the transfer of the Assets and Liabilities to the
Assignee, and would not, individually or in the aggregate, have a Material
Adverse Effect on Assignor.
Section 3.04. No Consents or Violations of Contracts, etc.
Neither the execution, delivery or performance of this Agreement by Assignor nor
the consummation of the transactions contemplated hereby will (i) except as set
forth in Schedule 3.04, require the Consent of any third party or (ii) result in
a violation or breach of, or constitute (with or without due notice of lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, or result in the creation of any lien or other
encumbrance on any Asset pursuant to, any Contract, note, bond, mortgage or
other instrument or obligation to which Assignor is a party or by which any of
its assets may be bound, except for violations or other occurrences that would
not prevent or delay consummation of this Agreement or the transactions
contemplated hereby in any material respect and would not, individually or in
the aggregate, have a Material Adverse Effect on Assignor.
Section 3.05. Ownership of Assets. Subject to the Liabilities,
to receipt of the Consents contemplated by Schedules 3.03 and 3.04 each of which
Consents has been duly obtained and is in full force and effect, and to Sections
3.09 and 3.10, Assignee will acquire all right, title and interest of Assignor
in and to the Assets at Closing.
Section 3.06. Litigation. Except as set forth in Schedule
3.06, to the knowledge of Assignor, there are no actions, suits, claims, or
proceedings pending or, threatened against Assignor, before any court, tribunal,
governmental body, commission, agency or arbitrator.
Section 3.07. Investment Intent. Assignor will acquire the
membership interests of Assignee pursuant to this Agreement for its own account
for the purpose of investment and not with a view to the distribution thereof.
Section 3.08. Condition of the Assets. ASSIGNOR MAKES (i) NO
REPRESENTATION OR WARRANTY AS TO ANY OF THE ASSETS AND ASSIGNS THEM IN "AS IS,
WHERE IS" CONDITION; (ii) NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE; OR
(iii) NO WARRANTY OF TITLE.
Section 3.09. Unknown Liabilities. Assignor does not warrant
the absence of unknown debts, liabilities, obligations, Encumbrances, rights,
claims or causes of action (whether absolute, accrued, contingent or otherwise).
If any exist, they shall be Assumed by Assignee.
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Section 3.10. No Indemnity. Assignor and Assignee agree that
Assignor shall have no obligation to indemnify Assignee or any of its successors
or assigns, or contribute to Assignee or any of its successors or assigns, for
any losses, claims, damages or liabilities to which Assignee or any of its
successors or assigns may become subject that, directly or indirectly, arise out
of or are related to the transactions contemplated hereby, including any
obligation of Assignee in respect of the Assets and Liabilities Assigned to and
Assumed by Assignee hereunder.
Section 3.11. Contracts. Schedule 1.01.A contains an accurate
and complete list of the Assets to be Assigned hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
Assignee represents and warrants to Assignor as follows:
Section 4.01. Organization and Qualification. Assignee is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware. Assignee has all requisite power and
authority to own, lease and operate the Assets to be assigned to it hereunder
and to carry on the business associated with the Assets. Assignee is duly
qualified and licensed to do business and in good standing in each jurisdiction
which makes such qualification necessary.
Section 4.02. Authority. Assignee has the requisite power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation by Assignee of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of
Assignee, and no other proceedings on the part of Assignee are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
or thereby. This Agreement, when duly executed and delivered by Assignee and
Assignor, shall constitute the valid and binding obligation of Assignee.
Section 4.03. Investment Intent. Assignee will acquire the
shares of Iridium Capital and the membership interests of Iridium Roaming and
Iridium IP pursuant to this Agreement for its own account for the purpose of
investment and not with a view to the distribution thereof.
ARTICLE V
EMPLOYEES
Section 5.01. Employees. This Agreement does not provide for
the transfer to Assignee of any of Assignor's employees or consultants. Such
employees and consultants shall render services to Assignee on and after the
Closing Date pursuant to the Management Services Agreement.
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ARTICLE VI
COVENANTS
Section 6.01. Consents Relating to Assets.
(a) By Closing, Assignor shall have obtained all Consents of
third parties necessary to Assign to the Assignee the Contracts listed in
Schedule 3.04.
(b) If Assignor is unable to fully comply with Section 6.01(a)
by Closing, but the parties nonetheless proceed to Closing based on one or more
waivers (such waiver or waivers to be in writing) by Assignee, Assignor shall
use its Best Efforts to comply with Section 6.01(a) following Closing unless
Assignee expressly relieves Assignor of such obligation in writing. If any
Consent is obtained after Closing, Assignor shall promptly complete the
Assignment to Assignee without payment of further consideration by Assignee to
Assignor.
Section 6.02. Consents and Approvals Relating to Liabilities.
(a) Assignee shall execute and deliver all instruments and
other documents, and take such other actions as Assignor may reasonably request
in order that, as of the Closing Date, Assignee shall have fully Assumed all of
the Liabilities and Assignor shall have been fully relieved of the Liabilities.
(b) If Assignee is unable to fully comply with Section 6.02(a)
by the Closing, but the parties nonetheless proceed to Closing based on one or
more waivers by Assignor in writing, Assignee shall use its Best Efforts to
comply with Section 6.02(a) following Closing unless Assignor expressly relieves
Assignee of such obligation in writing. If after Closing Assignee is able to
fully Assume any Liability and to have Assignor relieved of such Liability,
Assignee shall promptly complete the process without payment of further
consideration from Assignor to Assignee.
(c) If Assignee is unable to fully comply with Section 6.02(a)
so that Assignor continues to be obligated under any Liability, Assignee shall
timely pay, perform and discharge each such Liability of Assignor or indemnify
Assignor for any payment it makes or cost it incurs in regard to such Liability,
as the case may be.
Section 6.03. Taxes and Recording Fees. All Taxes and special
assessments, if any, payable with respect to any of the property included in the
Assets, shall be paid by Assignee. All transfer taxes and recording and filing
fees, if any, incurred in connection with the transfer of the Assets pursuant to
this Agreement shall be paid by Assignee.
Section 6.04. Expenses. All costs and expenses that remain
outstanding as of the Closing Date, including legal, accounting and other
professional fees, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by Assignee.
Section 6.05. Commercial Best Efforts. Each of the parties
agrees to use its Best Efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary,
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proper or advisable to consummate, as promptly as practicable, the transactions
contemplated hereby. Each of the parties agrees to cooperate fully with the
other in assisting it to comply with this Agreement.
Section 6.06. Compliance with Applicable Bulk Transfer Laws.
Without admitting the applicability of the bulk transfer law of any
jurisdiction, the parties have agreed to waive the compliance with such laws.
Losses incurred as a result of noncompliance with any applicable bulk transfer
law shall be borne by Assignee.
Section 6.07. Books and Records. The parties acknowledge that
(i) some of the Books and Records held by Assignor on the Closing Date should be
retained by Assignor to enable it to perform various obligations and services
for which it will be responsible after the Closing Date regarding, by way of
example, its employees and real estate leases, and (ii) some should be
transferred by Assignor to Assignee to enable Assignee to perform various
obligations and services for which it will be responsible after the Closing Date
regarding, by way of example, the Contracts. Accordingly, the parties agree that
on and after the Closing Date they shall review the Books and Records held by
Assignor on the Closing Date and come to an agreement regarding which Books and
Records should be retained by Assignor and which should be transferred to
Assignee, consistent with their respective obligations after the Closing Date.
If any Books and Records held by Assignor on the Closing Date are needed by both
parties, each party agrees that, on and after the Closing Date, it shall take
such action as may be required (including making copies of any such Books and
Records) to share or provide the other with access to such Books and Records.
Section 6.08. Further Assurances. The parties shall execute
and deliver such further instruments and shall take such other actions as each
of them may reasonably request of the other in order to effectuate the intent
and purposes of this Agreement. Without limiting the generality of the preceding
sentence, at any time and from time to time on or after the Closing Date, (i) at
the request of Assignee, Assignor shall execute and deliver to Assignee such
other instruments of transfer and take such other actions as Assignee may
reasonably deem necessary or desirable in order to more effectively transfer to
Assignee and to confirm Assignee's right, title and interest in the Assets and
to place Assignee in control of the Assets and to enable the Assignee to
exercise and enjoy all of the Assets; and (ii) at the request of Assignor,
Assignee shall execute and deliver to Assignor or to third parties all
instruments and other documents and take such other actions as Assignor may
reasonably deem necessary or desirable in order to have Assignee fully Assume
the Liabilities and to have Assignor fully relieved of the Liabilities.
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ARTICLE VII
CONDITIONS
The respective obligations of Assignor and Assignee to proceed to
Closing shall be subject to the satisfaction or waiver, on or prior to the
Closing Date, of the following conditions:
Section 7.01. Representations and Warranties. The
representations and warranties of both parties contained in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and as of the Closing Date.
Section 7.02. Performance of Obligations. Each party shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to Closing, including the obligations set
forth in Sections 6.01 and 6.02. Each document evidencing or incident to an
action required to be taken hereunder by one party shall have been reasonably
satisfactory in form and substance to the party and each party shall have
received such originals or copies of such documents as it may reasonably
request.
Section 7.03. Consents of Third Parties. The parties to the
Contracts listed in Schedule 3.04 shall have Consented to the Assignment of such
Contracts pursuant to this Agreement, and such Consent shall remain in full
force and effect and not be subject to any condition that has not been waived or
satisfied.
Section 7.04. Assumption of Liabilities of Assignor. The
parties to the Liabilities listed in Schedule 3.04 whose Consent is required for
the Assignee to Assume the Liabilities and for the Assignor to be relieved of
the Liabilities shall have Consented thereto.
Section 7.05. Insurance Coverage. Assignee shall have
received, in respect of each Insurance Policy, an endorsement or other written
instrument to the effect that, upon completion of the transactions contemplated
by this Agreement, (i) Assignee and its directors, officers, employees, property
and interests will be covered by the Insurance Policies to the same extent and
upon the same policy terms that Assignor and its directors, officers, employees,
property and interests were covered prior to the Closing Date and (ii) Assignor,
Iridium Capital, Iridium Roaming and Iridium IP and their respective directors,
officers, employees, property and interests will retain the insurance coverage
to the same extent and upon the same policy terms that they had immediately
prior to the Closing Date.
ARTICLE VIII
CLOSING
Section 8.01. Closing. The closing of the transactions
contemplated hereby (the "Closing") shall take place (i) at the offices of
Holland & Knight LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇.▇. at 6:00 p.m. local time on December 18, 1997, or as soon as practicable
following the satisfaction (or waiver) of the conditions set forth in Article
VII or (ii) at such other place, time and date as the parties shall mutually
agree (the "Closing Date").
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Section 8.02. Documents to be Delivered by Assignor. At or
prior to Closing, Assignor shall deliver the following documents to Assignee:
(a) the Consents required by Sections 7.03 and 7.04;
(b) the endorsements or other written instruments required by
Section 7.05;
(c) certificates or another written instrument evidencing the
transfer of all of the outstanding shares of Iridium Capital, duly executed, and
any other instrument, duly executed, as may be required under the by-laws or
other organizational documents or any shareholder agreement to effectuate the
transfer of such shares;
(d) certificates or another written instrument evidencing the
transfer of all of the outstanding membership interests of Iridium Roaming and
Iridium IP, duly executed and any such other instrument, duly executed, as may
be required under the by-laws, limited liability company agreements or other
organizational documents or any membership agreement to effectuate the transfer
of such membership interests;
(e) all bills of sale, assignments and other instruments or
documents as Assignee may reasonably request to evidence, perfect or complete
the Assignment the ownership of the Assets from Assignor to Assignee;
(f) a good standing certificate for Assignor from the
Secretary of State of Delaware dated no more than 30 days prior to the Closing
Date.
(g) First Series A Note Supplemental Indenture dated as of
December 18, 1997;
(h) First Series B Note Supplemental Indenture dated as of
December 18, 1997;
(i) First Series C Note Supplemental Indenture dated as of
December 18, 1997;
Section 8.03. Documents to be Delivered by Assignee. At or
prior to Closing, Assignee shall deliver the following documents to the
Assignor:
(a) a certificate or another written instrument evidencing the
transfer of all of the outstanding membership interests in Assignee, registered
in the name of "Iridium LLC"; and
(b) a good standing certificate for Assignee from the
Secretary of State of Delaware dated no more than 30 days prior to the Closing
Date.
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ARTICLE IX
TERMINATION
Section 9.01. Termination. This Agreement may be terminated at
any time prior to Closing by the mutual consent of Assignor and Assignee, upon
written notice to the other.
Section 9.02. Effect of Termination. If this Agreement is
terminated pursuant to this Article, it shall be void and of no further force
and effect, and there shall be no further liability or obligation on the part of
either party.
ARTICLE X
GENERAL PROVISIONS
Section 10.01. Amendments. This Agreement may be amended by
the parties at any time during the term of this Agreement. To be effective, any
such amendment must be by an instrument in writing signed by both parties.
Section 10.02. Extension; Waiver. Either party entitled to the
benefits hereof may (i) extend the time for the performance of any obligation of
the other party, (ii) waive a breach of a representation or warranty by the
other party, or (iii) waive compliance by the other party with any covenant,
requirement or condition contained herein. Any such extension or waiver shall be
valid only if set forth in a written instrument signed by the party giving the
extension or waiver.
Section 10.03. Governing Law. This Agreement shall be
governed, construed and enforced in accordance with the laws of the District of
Columbia.
Section 10.04. No Third Party Beneficiaries. This Agreement is
not intended to confer any rights or remedies upon any person other than the
parties hereto.
Section 10.05. Power of Attorney. For the limited purposes of
transferring the Assets and Liabilities, Assignor hereby constitutes and
appoints Assignee as Assignor's true and lawful attorney, with full power of
substitution, in Assignor's name and stead, to demand, enforce and receive any
Asset Assigned hereunder and to pay, defend and discharge all of the Liabilities
Assumed hereunder, and to give receipts and releases for and in respect of the
same, and any part thereof, and from time to time, to institute and prosecute in
Assignor's name, or otherwise, at the expense of and for the benefit of
Assignee, its successors and assigns, any proceeding at law, in equity, or
otherwise, which Assignee, its successors and assigns, may deem proper for the
collection or reduction to possession of any Asset or the payment and discharge
of any Liability, or for the collection and enforcement of any claim or right of
any kind hereby Assigned or Assumed, or intended so to be, and to do all
reasonable acts and things in relation to the Assets and the Liabilities.
Assignor hereby acknowledges and declares that the foregoing powers are coupled
with an interest and are and shall be irrevocable by Assignor in any manner, or
for any reason whatsoever.
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16
Section 10.06. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (if receipt is confirmed) or mailed by certified mail (return receipt
requested) to the parties at the following addresses or telephone numbers (or at
such other address or telephone number for a party as shall be specified by like
notice):
(a) if to Assignor, to
Iridium LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Assignee, to
Iridium Operating LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: General Counsel
Telecopy (▇▇▇) ▇▇▇-▇▇▇▇
Section 10.07. Severability. Any provision of this Agreement
which is held invalid or unenforceable shall be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining provisions of this Agreement.
Section 10.08. Counterparts. This Agreement may be executed in
two or more counterparts, which together shall be deemed an original, and shall
constitute one and the same instrument.
Section 10.09. Entire Agreement. This Agreement, and the
assignments, novation agreements and other agreements provided herein,
constitute the entire agreement, and supersede any prior agreement, both written
and oral, between the parties with respect to the subject matter hereof and
thereof.
12
17
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ASSIGNOR:
WITNESS: IRIDIUM LLC
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant General Title: Vice President, General
Counsel--Corporate Matters Counsel and Secretary
ASSIGNEE:
WITNESS: IRIDIUM OPERATING LLC
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ Royal Grant
--------------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇
Title: Assistant General Title: Vice President--Chief
Counsel--Corporate Matters Financial Officer
13
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SCHEDULES
Schedule 1.01A Assets
Schedule 1.01B Excluded Assets
Schedule 1.01C Liabilities
Schedule 1.01D Excluded Liabilities
Schedule 3.03 No Conflicts, Filings, etc.
Schedule 3.04 Required Consents
Schedule 3.06 Litigation
19
SCHEDULE 1.01A
ASSETS
I. Contracts Requiring Consent
A. Motorola Agreements:
Space System Contract
Operations & Maintenance Contract
Mutual Non-Disclosure Agreement
Terrestrial Network Development Contract (except as
specified on Schedule 1.01D)
Support Agreement with Motorola
Amended and Restated Agreement Regarding
Guarantee (except as specified on Schedule 1.01D)
Memorandum of Understanding, dated as of July 11,
1997
Indemnification Agreement, dated as of July 11, 1997
B. Gateway Authorization Agreements:
Iridium Africa
Iridium Sud America Ltd. (Brasil)
Iridium Canada
China Great Wall Corporation (China)
Infrastructure Leasing and Financial Services Ltd.
(India)
STET - Societa Finanziera Telefonica Per Azioni
(Italy)
Iridium Middle East (UAE, Bahrain, Cyprus, Canary
Islands, Saudi Arabia and South Africa)
Khrunichev State Research and Production Space
Center (Russia)
Nippon Iridium Corporation (Japan)
Pacific Electric Wire & Cable Co. Ltd. (Taiwan,
Indonesia and Philippines)
SK Telecom (Korea)
South Pacific Iridium Holdings Limited (Australia)
Thai Satellite (Thailand)
Vebacom GmbH (Germany)
Sprint Iridium, Inc. (SW U.S.A.)
Motorola (U.S.A.)
C. Other Contracts
AlliedSignal Avionics, Inc.
▇▇▇▇▇▇▇▇ Consulting LLP
Bay Networks USA, Inc.
▇▇▇▇ Communications Research, Inc.
▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
20
Compaq Computer Corporation
Sun Microsystems, Inc.
Swiss PTT and Unisource Carrier Services ▇▇
▇▇. Contracts Not Requiring Consent
A. Motorola Agreements:
Engineering Assistance Agreement
B. Other Contracts:
AlliedSignal, Inc. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇
The ▇▇▇▇▇▇ Group
III. Other Assets
a. All of the outstanding shares of Iridium Capital.
b. All of the outstanding membership interests of
Iridium Roaming.
c. All of the outstanding membership interests of
Iridium IP.
d. The Space System Under Construction.
e. Cash in the following accounts, provided that cash in the
aggregate amount of Five Million Dollars ($5,000,000) shall remain in such
accounts following the Closing Date.
Crestar Bank NA Citibank Delaware Citibank Landmark ILR
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. One Penns Way ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account Numbers: Account Number: Account Number:
--------------- -------------- --------------
206657137; 206657145; 206657439 406092067 509877
f. The accounts receivable identified in Assignor's Books and
Records as of the Closing Date, including (i) receivables and account listings
other than cash advances to employees, (ii) the GBS deployment receivables, and
(iii) the VAT receivable:
g. The following deposits, prepaid expenses, costs, accruals
and amounts paid in the amounts designated on Assignor's Books and Records as of
the Closing Date, which are characterized as assets under generally accepted
accounting principles: (i) all costs and milestone payments associated with the
Space System Under Construction, (ii) the prepaid GBS deployment contract costs,
(iii) the debt issuance costs, (iv) the clearing house development costs, (v)
the aero ground subsystem costs, (vi) the DEU bank facility costs, (vii) the
global ownership program costs, (viii) the limited recourse facility costs, and,
(ix) the bridge loan financing costs.
2
21
h. All claims, suits, rights, and causes of action, including
the right to ▇▇▇ for prior infringement of any patent, copyright or trademark
which has accrued with respect to any of the Assets.
i. All rights under any contractual, express or implied
warranty or any warranty existing by operation of law with respect to any Asset
or any product or service delivered or to be delivered by any party to Assignor
under any Contract.
j. IBSS computer billing system; and
k. A perpetual, paid-up license to use and sublicense the use
of the trade name "Iridium" and intellectual property rights relating to the
Iridium System;
l. Permits, consents, authorizations, customer lists,
engineering drawings, test data and catalogues; and
3
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SCHEDULE 1.01B
EXCLUDED ASSETS
Assignor's automobile leases
Books and Records of Assignor
Employee benefit plans of Assignor
Assignor's rights under the Management Services Agreement, Interest Exchange
Agreement and Share Issuance Agreement
Lease for ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
Lease for ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Lease ▇▇▇▇-▇▇▇▇▇▇ Properties, ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and 160,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Insurance Policies
Rights of Assignor under its insurance contracts as contemplated by Section 7.05
Cash in Assignor's bank accounts to the extent specified in Schedule
1.01A.III(e)
All other Assets of Assignor not listed on Schedule 1.01.A.
Any rights under the Excluded Liabilities to the extent specified in Schedule
1.01.D.
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SCHEDULE 1.01C
LIABILITIES
$300,000,000 13% Senior Notes due 2005, Series A
$500,000,000 14% Senior Notes due 2005, Series B
$300,000,000 11.25% Senior Notes due 2005, Series C
All outstanding 14.50% Senior Subordinated Discount Notes due 2006
Credit Agreement dated as of August 21, 1996 among Iridium LLC, Chase
Securities, Inc. and Barclays Capital, a division of Barclays Bank PLC (as
successor to BZW), The Chase Manhattan Bank, as Administrative Agent, Barclays
Bank, PLC, as Documentation Agent and the banks party thereto (the "Guaranteed
Credit Agreement") and the Revolving Credit Notes (as defined in the Guaranteed
Credit Agreement).
All accrued, current and future obligations and claims arising out of or
relating to the Assets listed on Schedule 1.01A hereto and the Liabilities
listed on this Schedule 1.01C, and the Guaranteed Credit Agreement, including
those that are unknown or contingent and also including all obligations and
claims arising out of or relating to the Reorganization, in each case to the
extent not specifically excluded by Schedule 1.01D hereto and any liability of
Assignor related to any representation or warranty made by Assignor in
connection therewith.
24
SCHEDULE 1.01D
EXCLUDED LIABILITIES
Employment Plans and Agreements
Defined Contribution Plan
401(k) Profit Sharing Plan and Trust
Iridium LLC Pension Plan
Iridium LLC Option Plan of 1996
Iridium LLC Supplemental Retirement Income Plan
Iridium LLC Section 125 Cafeteria Plan
Employment Agreement with ▇▇. ▇▇▇▇▇▇
Employment Agreement with ▇▇. ▇▇▇▇▇▇▇
Financing Agreements -- General
U.S. Purchase Agreement among IWCL, Iridium LLC and the U.S. Underwriters
participating in the initial public offering of IWCL's Class A Common Stock
International Purchase Agreement among IWCL, Iridium LLC and the International
Underwriters participating in the initial public offering of IWCL's Class A
Common Stock
1997 Subscription Agreement
Share Issuance Agreement
Interest Exchange Agreement
Purchase Agreement among IWCL, Iridium LLC, Iridium Capital Corporation, Iridium
IP LLC, Iridium Roaming LLC and the Initial Purchasers relating to the purchase
of (i) 300,000 Units consisting of $300,000,000 13% Senior Notes due 2005,
Series A and warrants to purchase shares of Class A Common Stock of IWCL and
(ii) $500,000,000 14% Senior Notes due 2005, Series B Unit Agreement
LLC Interest Warrant
Purchase Agreement among IWCL, Iridium LLC, Iridium Capital Corporation, Iridium
IP LLC, Iridium Roaming LLC and the Initial Purchasers relating to the purchase
of $300,000,000 11.25% Senior Notes due 2005, Series C
Financing Agreements -- Members
All 1993 Stock Purchase Agreements between Iridium Inc. and members of Iridium
LLC
25
All 1994 Stock Purchase Agreements between Iridium Inc. and members of Iridium
LLC
All duly authorized, issued and outstanding warrants to purchase membership
interests in Iridium LLC (and to issue membership interests in Iridium LLC upon
exercise or conversion)
Iridium's obligation to issue warrants under Article 5 of the Terrestrial
Network Development Contract
Iridium's obligation to pay warrant compensation under Section 2 of the Amended
and Restated Agreement Regarding Guarantee, provided that the right (and the
corresponding obligation) to pay High Yield Equivalent Compensation (as defined
in the Amended and Restated Agreement Regarding Guarantee) in lieu of warrant
compensation shall not be an Excluded Liability
Iridium's obligation under Section 2 of the Amended and Restated Agreement
Regarding Guarantee to provide Motorola with an additional Banking and Finance
Committee member and the Series B, Class 2 interest (as described in the Amended
and Restated Agreement Regarding Guarantee), provided that Iridium's retention
of such obligation shall not affect Operating's obligation to provide Motorola
with an additional member of the Banking and Finance Committee of Operating
pursuant to Article II of the Limited Liability Company Agreement of Iridium
Operating LLC.
Iridium's obligation under Section 4 of the Amended and Restated Agreement
Regarding Guarantee to provide Motorola the protection rights listed in
subparagraphs (a), (b), (e), (f) and (g) of such Section 4, provided that
Iridium's retention of such obligations shall not affect Operating's obligation
to provide Motorola the protection rights listed in subparagraphs (c), (d), (e),
(g) and (h) of such Section 4
Iridium's acknowledgment and agreement under Section 9 of the Amended and
Restated Agreement Regarding Guarantee, provided that Operating shall be deemed
to have been made the same acknowledgment and agreement upon the Closing
Sales, General & Administrative
Lease for ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
Lease for ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Obligations under Insurance Policies
Governance/Membership Arrangements
All current and future obligations of Assignee and claims against Assignee by
its members arising out of or relating to Assignee's obligations to its members
under the Limited Liability Company Agreement of Iridium LLC
2
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SCHEDULE 3.03
NO CONFLICTS, FILINGS, ETC.
Permits
None required to execute, deliver or perform the Agreement or to consummate the
transactions contemplated by the Agreement and no Permits held by Assignor.
27
SCHEDULE 3.04
REQUIRED CONSENTS
The Contracts listed in Part I of Schedule 1.01A are incorporated
herein by this reference.
28
SCHEDULE 3.06
LITIGATION
None.