EXHIBIT 10.42c
FIRST AMENDMENT
TO
AMENDED AND RESTATED ASSET SALE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED ASSET SALE AGREEMENT (this
"Amendment"), is made as of October 12, 2001, by and between Mobile Satellite
Ventures LLC, a Delaware limited liability company (formerly named Motient
Satellite Ventures LLC) ("Newco") and Motient Services Inc., a Delaware
corporation ("Motient Services").
WHEREAS, TMI Communications and Company Limited Partnership ("TMI"), Newco,
Motient Corporation ("Parent") and the Investors named therein entered into that
certain January 2001 Investment Agreement dated as of January 8, 2001 (the
"January Investment Agreement").
WHEREAS, in connection with the January Investment Agreement, Newco and
Motient Services entered into that certain Amended and Restated Asset Sale
Agreement dated as of January 8, 2001 (the "Sale Agreement"), pursuant to which
Motient Services agreed to sell and Newco agreed to purchase certain of the
assets and assume certain of the liabilities of the Satellite Communications
Business.
WHEREAS, TMI, Parent, Newco, and the Investors named therein entered into
the Amended and Restated Investment Agreement dated as of the date hereof (the
"October Investment Agreement") which amends and restates the January Investment
Agreement.
WHEREAS, Newco and Motient Services desire to make certain modifications to
the Sale Agreement to reflect the October Investment Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Amendments to Sale Agreement. The Sale Agreement is hereby amended as
follows:
(a) The following definitions contained in Exhibit A to the Sale Agreement
are hereby deleted in their entirety and replaced with the following:
"Investment Agreement" means that certain Amended and Restated
Investment Agreement dated as of October 12, 2001 by and among Motient
Corporation, Newco, TMI Communications Company Limited Partnership and the
other parties named therein.
(b) The term "Investor Option" contained in Exhibit A to the Sale Agreement
is hereby deleted in its entirety.
(c) The term "Shared Assets" contained in Exhibit A to the Sale Agreement
is hereby deleted in its entirety.
(d) The following definition is hereby added to Exhibit A to the Sale
Agreement:
"Leased Assets" shall have the meaning given such term in Section
2.3(x)."
(e) Section 2.3(b) is hereby revised to delete the words "subject to
regulatory approval,".
(f) Section 2.3(f) is hereby revised to delete the words "and the
Landlord's consent".
(g) Section 2.3(t) is hereby revised to delete the words "Section
2.4(a)(vi)" and replace them with "Section 2.4(a)(v)".
(h) Section 2.3(v) is hereby revised to delete the words "and the Shared
Assets listed on Schedule 2.3(v) to the Disclosure Schedule".
(i) The following clause is hereby added to the end of Section 2.3:
"(x) the assets listed on Schedule 2.3(x) hereof (the "Leased
Assets")."
(j) Section 2.4(a) is hereby deleted in its entirety and replaced with the
following:
"(a) "Excluded Assets" consist of (i) Motient Services' corporate
charter, qualifications to conduct business as a foreign corporation,
arrangements with registered agents relating to foreign qualifications,
taxpayer and other identification numbers, seals, minute books, stock
transfer books, blank stock certificates, and other documents relating
solely to the organization, maintenance or existence of Motient Services as
a corporation, (ii) Motient Services' rights with respect to Intercompany
Agreements (as defined herein), (iii) except as provided in Sections
2.3(p)(t) and (u) hereof, cash and cash equivalents (including without
limitation the Purchase Price), (iv) Motient Services' rights to and
interests in the trademark "Motient," the Motient logo and all goodwill
related thereto, (v) that portion of the accounts receivable of Motient
Services that relate to federal, state and local excise, sales and use
taxes required to be paid by Motient Services under Section 2.5(b)(xiii)
hereof and, (vi) the assets listed on Schedule 2.4. Notwithstanding
anything else in this Amended Sale Agreement to the contrary, in addition
to the foregoing, the Excluded Assets shall include (A) all consideration
received or to be received by Motient Services and/or any of its Affiliates
pursuant to the Aether Sale Agreement, the Escrow Agreement dated November
29, 2000 between Motient Services and Aether, and (B) the Eight Million
Eight Hundred Thousand Dollars ($8,800,000) in prepayments (whether
received or to be received) to Motient Services pursuant to Section 2.1(c)
of the Private Network Satellite Services Agreement dated November 29, 2000
between Motient Services and Aether (the "Aether Satellite Network
Agreement")."
(k) Section 2.4(b) is hereby deleted in its entirety and replaced with the
following:
"Notwithstanding anything else in this Amended Sale Agreement to the
contrary, if an assignment or transfer of any Subject Asset or part thereof
or any rights or benefits thereunder or resulting therefrom without the
consent of a third party thereto , would constitute a breach thereof, or
make Newco, Motient Services or their respective Affiliates liable for
damages or other penalties thereunder and if such consent is not obtained,
or if an attempted assignment thereof would be ineffective or would
adversely effect the rights of Newco so that Newco would not in fact
receive all such rights, Motient Services (i) shall cooperate with Newco,
at Newco's request, in endeavoring to obtain such consent and (ii) if such
consent is unobtainable, shall hold any such Subject Asset or part thereof
in trust for Newco and shall cooperate with Newco in an arrangement
designed to provide to Newco the benefits and liabilities associated with
such Subject Asset or part thereof or any right or benefit arising
thereunder or resulting therefrom, including, but not limited to,
enforcement for the benefit of Newco of any and all rights of Motient
Services against any third party arising out of a breach or cancellation by
such third party or otherwise; provided, however, that nothing in this
Section 2.4(b) shall be deemed a waiver by Newco or a requirement by Newco
to waive any condition to Closing, including conditions relating to
obtaining consents of third parties. Motient Services and Newco shall from
time to time after the Closing Date execute and deliver to the other such
further instruments and other written assurances and documents as may be
reasonably required to perfect the transfer of any Subject Asset to Newco,
or to ensure that Newco in entitled to the benefits of any Subject Asset."
(l) The penultimate sentence of Section 2.5(a) is hereby deleted in its
entirety and replaced with the following:
"Notwithstanding anything contained in this Amended Sale Agreement to
the contrary, the Assumed Liabilities shall include (A) all ongoing
service, warranty, and other obligations and liabilities of Motient
Services to Aether under the Aether Satellite Network Agreement,
notwithstanding the fact that the Eight Million Eight Hundred Thousand
Dollars ($8,800,000) to be prepaid by Aether in accordance with Section
2.1(c) of such agreement shall be retained by Motient Services, as provided
in Section 2.4(a) above, and (B) all of the obligations and liabilities of
Motient Services under the Intellectual Property License Agreement dated
November 29, 2000 between Motient Services and Aether (the "Aether IP
License"), but only to the extent such obligations and liabilities relate
to the Intellectual Property that is being transferred to Newco pursuant to
this Amended Sale Agreement."
(m) The following clauses (xiv) and (xv) shall be added to the end of
Section 2.5(b):
"(xiv) any liability relating to the matter described in Item 5 of
Section 4.9 of the Parent/Newco Disclosure Schedule (as defined in the
Investment Agreement), and (xv) any liability or obligation relating to the
Agreement of Lease dated April 16, 1998 between Motient Services and
Council Square, LLC, and related Assignment dated June 6, 2000. "
(n) Section 3.8(a)(iv) is hereby deleted in its entirety and replaced with
the following:
"(iv) as long as Newco has satellite capacity, and Motient has not
received the $8.8 million prepayment in accordance with Section 2.1(c) of
the Aether Satellite Network Agreement (or would be liable for return of a
portion thereof), not terminate service to Aether under such agreement
without Motient Service's consent,"
(o) Section 4.3 is hereby revised to move the phrase "Except as disclosed
on Schedule 4.3 of the Disclosure Schedule" immediately after (B) and before the
word "conflict".
(p) Section 4.5 is hereby revised to delete the words "owned by it" in the
first sentence.
(q) Section 6.4 is hereby deleted in its entirety and replaced with the
following:
"6.4 Contemporaneous Closing
The closing of the transactions contemplated by each of the First
Closing (as defined in the Investment Agreement) of the Investment
Agreement, the Asset Sale Agreement dated as January 8, 2001, as amended,
between Newco and TMI Communications and Company Limited Partnership
("TMI") (the "Newco-TMI Sale Agreement"), the Asset Sale Agreement dated as
January 8, 2001, as amended, between TMI and Canadian License Co. (the
"Canadian Asset Sale Agreement") and the Asset Sale Agreement dated as of
January 8, 2001, as amended, between TMI and MSV Nova Scotia ULC (the
"TMI-ULC Asset Sale Agreement") shall occur prior to, or simultaneously
with, the Closing under this Agreement."
(r) Section 8.6 is hereby revised to add at the end of the first sentence
(immediately after the words "business opportunities") the following:
"or if Newco determine in good faith that such arrangement would not
be in the best interest of Newco, due to Motient Services' financial
conditions"
(s) The heading of Section 8.5 and Section 8.5(a) are hereby deleted in
their entirety and replaced with the following:
"8.5 Leased Assets; Parent Guaranties
(a) The parties acknowledge that as of the date hereof (and as of the
Closing Date) the Leased Assets, which are listed on Schedule 8.5 to the
Disclosure Schedule, that will comprise part of the Subject Assets, are
presently used by Motient Services in connection with its Satellite
Communications Business and Motient Corporation and its Subsidiaries in
connection with their respective lines of business. The parties agree to
cooperate in good faith to develop a lease-back arrangement whereby Newco
shall lease or otherwise provide reasonable access to such Leased Assets to
Motient Corporation and its Subsidiaries. Such lease-back arrangement shall
accommodate the reasonable business needs of both Newco, on the one hand,
and Motient Corporation and its Subsidiaries, on the other hand, and shall
last for a period of time reasonably acceptable to both parties. Without
limiting the generality of the foregoing, beginning on the Closing Date,
Newco shall provide Motient Corporation and its Subsidiaries with access
to, and use of (A) the telephones, facsimile machines and computers at the
Reston Facility then used by the employees of Motient Corporation and its
Subsidiaries (who are not Accepting Employees) for their intended and usual
purpose in connection with the operation of the their respective businesses
for a period of time reasonably acceptable to both parties and (B) the
computer network and programs for accounting applications. The parties
shall negotiate in good faith to equitably apportion the costs and
liabilities associated with the use of such Leased Assets, and, if
appropriate, enter into a transition services agreement which shall provide
for the foregoing and such other transition services as the parties shall
in good faith agree."
(t) Schedule 2.3(v) and Schedule 8.5 to the Asset Sale Agreement are hereby
deleted in its entirety.
(u) Schedule 2.3(x) attached hereto is hereby added as a new Schedule
2.3(x) to the Asset Sale Agreement.
2. Miscellaneous. Capitalized terms used herein and not defined herein
shall have the meaning ascribed to them in the Sale Agreement. All other terms
and provisions of the Sale Agreement shall continue in full force and effect and
unchanged and are hereby confirmed in all respects. This Amendment shall
terminate upon the termination of the October Investment Agreement and all of
the terms of the Sale Agreement shall continue in full force and effect (without
giving effect to this Amendment). This Amendment may be executed in any number
of counterparts which, taken together, shall constitute a single, binding
instrument.
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IN WITNESS WHEREOF, each of the parties hereto have caused this First
Amendment to Amended and Restated Asset Sale Agreement to be executed as of the
date first written above.
MOBILE SATELLITE VENTURES LLC
By: /s/Gary M. Parsons
-----------------------------------
Gary M. Parsons, Chairman
MOTIENT SERVICES INC.
By: /s/Gary M. Parsons
-----------------------------------
Gary M. Parsons, Chairman
Schedule 2.3(x)
LEASED ASSETS
The Leased Assets include the (i) telephones, facsimile machines, computers,
printers, and other office and communications equipment used by both the
employees of the Satellite Communications Business and the employees of Motient
Corporation or its subsidiaries, (ii) office and common space furniture used by
both the employees of the Satellite Communications Business and the employees of
Motient Corporation or its subsidiaries, (iii) that portion of the telephone
(PSTN) contracts with AT&T and Sprint attributable to usage by Motient
Corporation and its subsidiaries (other than the Satellite Communications
Business), and (iv) assets and facilities necessary to provide uninterrupted
power supply (UPS).