EXHIBIT 10.63a
SATELLITE PURCHASE AGREEMENT AMENDMENT NO. 1 dated as of October 9, 1998 between
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TMI COMMUNICATIONS AND COMPANY, LIMITED PARTNERSHIP ("TMI"), a limited
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partnership organized under the laws of the Province of Quebec, with its
principal executive office in the City of Gloucester, Province of Ontario, and
AMSC SUBSIDIARY CORPORATION ("AMSC"), a corporation dually incorporated under
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the laws of the States of Delaware and Virginia, respectively, with its
principal executive office in Reston, Virginia (and a wholly-owned subsidiary of
American Mobile Satellite Corporation), and AMERICAN MOBILE SATELLITE
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CORPORATION ("AMSC Parent Corp."), a Delaware corporation.
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WHEREAS:
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A. Pursuant to a Satellite Purchase Agreement dated as of December 2,
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1997 and made between AMSC, TMI and AMSC Parent Corp. (the "Satellite Purchase
Agreement"), AMSC agreed to purchase a 50% undivided interest in the Shared
Satellite owned by TMI;
B. AMSC, TMI and AMSC Parent Corp. wish to amend the terms of the
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Satellite Purchase Agreement;
NOW THEREFORE in consideration of the mutual covenants and agreements herein
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contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto covenant and agree as
follows:
ARTICLE 1
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DEFINITIONS
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1.1 Definitions. In this Satellite Purchase Agreement Amendment No. 1, the
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following words and expressions shall have the meanings ascribed to them below:
"Satellite Purchase Agreement Amendment No. 1" means this agreement to
amend the Satellite Purchase Agreement and all schedules and instruments in
amendment or confirmation of it.
1.2 Incorporation of Definitions. In this Satellite Purchase Agreement Amendment
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No. 1, including the recitals hereto, all capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed thereto in the
Satellite Purchase Agreement.
ARTICLE 2
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EXTENSION AND AMENDMENTS
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2.1 Amendment to Section 2.2(a). Section 2.2(a) of the Satellite Purchase
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Agreement is hereby amended by deleting it in its entirety and replacing it with
the following:
"(a) the amount of U.S.$2,500,000 (the "Purchase Price
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Prepayment"). Each of TMI and AMSC acknowledges and agrees that: (1) on
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or about December 2, 1997 AMSC paid $5,000,000 to TMI as the original
amount of the Purchase Price Prepayment; (2) the parties have
subsequently agreed to reduce the amount of the Purchase Price
Prepayment to $2,500,000; and (3) accordingly, TMI has returned the
amount of $2,500,000 from the original Purchase Price Prepayment to
AMSC, and retained the remaining amount of $2,500,000 as the Purchase
Price Prepayment;".
2.2 Amendment to Section 2.3(b). Section 2.3(b) of the Satellite Purchase
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Agreement is hereby amended by deleting it in its entirety and replacing it with
the following:
"(b) notwithstanding any other provision of this Agreement to the
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contrary, the Purchase Price Prepayment (together with all interest
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earned thereon, and on the original amount of the Purchase Price
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Prepayment) is irrevocable and non-refundable, and TMI is
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unconditionally entitled to retain it.".
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2.3 Amendment to Section 7.2(j). Section 7.2(j) of the Satellite Purchase
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Agreement is hereby amended by deleting it in its entirety and replacing it with
the following:
"(j) at any time on and after 4:00 p.m.(Montreal time) on March 1,
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1999, by either party if the transactions contemplated hereunder to
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occur on or before the Traffic Transfer Date have not been consummated
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for any reason; or".
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2.4 Amendment to Section 7.2(k). Section 7.2(k) of the Satellite Purchase
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Agreement is hereby amended by deleting it in its entirety and replacing it with
the following:
"(k)at any time prior to the Traffic Transfer Date, by AMSC if the
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AMSC Satellite Contract is terminated for any reason other than an
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event specified in Section 7.2; or".
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2.5 Amendment to Section 7.2. Section 7.2 of the Satellite Purchase Agreement is
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hereby amended by adding the following new Section 7.2(l) to it:
"(l)at any time on or after 4:00 p.m. (Montreal time) on November
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30, 1998, by either party, if the party so terminating, acting
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reasonably, has not been provided with satisfactory evidence that the
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AMSC Satellite Lessee has received an equity financing commitment from
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a strategic investor on terms sufficient to provide a reasonable basis
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to support the occurrence of the Traffic Transfer Date prior to March
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1, 1999.".
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2.6 Amendment to Section 7.5. Section 7.5 of the Satellite Purchase Agreement is
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hereby amended by deleting it in its entirety and replacing it with the
following:
"Section 7.5. Liquidated Damages. (1) Upon any termination of
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this Agreement pursuant to Section 7.2(j) due to the wilful misconduct
or bad faith of TMI in failing to satisfy or deliver, or arranging for
the satisfaction or delivery of, any of the conditions set forth in
Section 2.6 (other than the failure to obtain consents to be obtained
by AMSC under Section 2.6(a)), TMI shall indemnify AMSC, subject to the
exclusion of liability in Section 6.3, from and against all losses,
damages and costs it may have suffered or incurred, directly or
indirectly, as a result of the termination of this Agreement under
Section 7.2(j) due to the wilful misconduct or bad faith of TMI in
failing to satisfy or deliver, or arranging for the satisfaction or
delivery of, any of the conditions set forth in Section 2.6 (other than
the failure to obtain consents to be obtained by AMSC under Section
2.6(a)); provided, however that the maximum amount for which TMI shall
be liable under this Section 7.5(1) or otherwise under this Agreement
with respect to any such termination is U.S.2,500,000.
(2) The provisions of Sections 4.4(2), 5.2(1), 5.4, 6.3, 7.4,
7.5, 7.7, 8.7 and 8.18 shall survive any termination pursuant to
Section 7.2.".
ARTICLE 3
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MISCELLANEOUS
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3.1 Waiver. The amendments to the Satellite Purchase Agreement set forth herein
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are limited precisely as written and shall not operate as a waiver of or modify
or amend any other term or condition of the Satellite Purchase Agreement or any
of the instruments or agreements referred to therein or prejudice or operate as
a waiver of any rights or remedies which any of the parties may now or in the
future have under or in connection with the Satellite Purchase Agreement as
amended hereby or any of the instruments or agreements referred to therein.
3.2 Applicable Law. This Satellite Purchase Agreement Amendment No.1 shall
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be construed and interpreted in accordance with and governed by the laws of the
Province of Ontario, without giving effect to the principles of conflicts of
laws thereof, and the federal laws of Canada applicable therein.
3.3 Execution in Counterparts. This Satellite Purchase Agreement Amendment
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No. 1 may be executed in one or more counterparts, each of which shall be deemed
an original and all of which, taken together, shall constitute one and the same
instrument.
3.4 Execution by Facsimile. This Satellite Purchase Agreement Amendment No.
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1 may be executed by any party by facsimile and if so executed shall be legal,
valid and binding on any party executing in such manner.
IN WITNESS WHEREOF, the parties hereto have caused this Satellite Purchase
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Agreement Amendment No. 1 to be duly executed by their respective authorized
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officers as of the day and year first above written.
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TMI COMMUNICATIONS AND COMPANY,
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LIMITED PARTNERSHIP
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By: TMI COMMUNICATIONS INC.,
its General Partner
By: /s/Larry J. Boisvert
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Name: Larry J. Boisvert
Title: President and Chief Operating Officer
By: /s/Ted Ignacy
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Name: Ted Ignacy
Title: Chief Financial Officer
AMSC SUBSIDIARY CORPORATION
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By: /s/Gary M. Parsons
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Name: Gary M. Parsons
Title: Chief Executive Officer and President
AMERICAN MOBILE SATELLITE
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CORPORATION
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By:/s/Gary M. Parsons
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Name: Gary M. Parsons
Title: Chief Executive Officer and President