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EXHIBIT 10.45
STANDBY PURCHASE AGREEMENT
THIS STANDBY PURCHASE AGREEMENT (this "Agreement"), dated as
of 1998, is made by and between Iridium Operating LLC, a Delaware
limited liability company ("Iridium"), and Kyocera Corporation, a
corporation ("Kyocera").
In order to stimulate the manufacture and distribution of
hand-held phones (each, a "Handset") and belt-worn pagers (each, a "Pager") to
be used in the IRIDIUM System (Handsets and Pagers are collectively referred to
herein as "Products"), Iridium and Kyocera have agreed as follows:
1. Product Purchases. Subject to Section 3 of this
Agreement, within 60 days after receipt of a Purchase Notice, Iridium agrees to
purchase from Kyocera (I) the number of Handsets equal to (x) ,
minus (y) the aggregate amount of Handsets Paid For by Gateway Operators and
Service Providers (in each case within the meaning of the Iridium LLC Limited
Liability Company Agreement) as specified in the Purchase Notice, at a purchase
price per Handset of $ , and (II) the number of Pagers equal to
(x) ,minus(y) the aggregate amount of Pagers Paid For by Gateway Operators
and Service Providers (in each case within the meaning of the Iridium LLC
Limited Liability Company Agreement) as specified in the Purchase Notice, at a
purchase price per Pager of $ . In this Agreement, Products
will be deemed "Paid For" if (i) payment for such Product has been made by or
on behalf of the relevant Gateway Operator or Service Provider pursuant to the
terms of the purchase order applicable to such Product, or (ii) such Product
has been shipped pursuant to a trade letter of credit. As used in this
Agreement, the term "Purchase Notice" shall mean a written notice dated on
January 1, 1999 or the first business day thereafter, which is sent by Kyocera
and received by Iridium, in which the aggregate number of Handsets Paid For by
Gateway Operators and Service Providers and the aggregate number of Pagers Paid
For by Gateway Operators and Service Providers, all as of the date of such
Purchase Notice, shall be specified.
2. Delivery Obligations. Upon the purchase of Products
by Iridium pursuant to Section 1 hereof, Kyocera shall promptly deliver to
Iridium or its designee the Products so purchased; provided, however, that if
any Product has been shipped by Kyocera to a Gateway Operator or Service
Provider and such Product has not been Paid For, then Kyocera may fulfill its
delivery obligations pursuant to this Section 2 with respect to such Product by
assigning to Iridium all of Kyocera's rights against the relevant Gateway
Operator or Service Provider with respect to such Product pursuant to the
purchase order and other documents with respect to such Product. If after the
date of the Purchase Notice Kyocera receives any payment with respect to a
Product covered in the proviso to the preceding sentence or any return thereof,
Kyocera shall immediately pay
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over to Iridium such payment or shall deliver to Iridium or its designee such
returned Product.
3. Limitation on Purchases. The parties acknowledge
that purchases of Products by Gateway Operators and Service Providers will be
made pursuant to written purchase agreements between Kyocera and such Gateway
Operators and Service Providers (such agreements, the "Purchase Agreements").
To the extent that any Gateway Operator or Service Provider is entitled
pursuant to any Purchase Agreement to reduce the number of Products it is
obligated to take delivery of on or prior to December 31, 1998 thereunder for
any reason, including but not limited to poor manufacture and delivery delay,
and such Gateway Operator or Service Provider makes such reduction (a
"Reduction"), Iridium shall be entitled to reduce the number of Products
specified in clauses (I)(x) and (II)(x) of Section 1 of this Agreement by the
amount of any such Reduction.
4. Other Terms of Purchase. All terms of any purchase
of Products by Iridium pursuant to this Agreement, other than purchase price,
payment and delivery terms, shall be as set forth in the attached form of
purchase order.
5. Termination. This Agreement shall terminate on the
date that an aggregate of Handsets and Pagers shall have been
Paid For by any of the Gateway Operators, Service Providers, Iridium, or any
combination thereof.
6. Notices. All notices and other communications
hereunder will be in writing. Any notice or other communication hereunder
shall be deemed duly given (i) when delivered, if personally delivered, (ii)
when receipt is electronically confirmed, if faxed (with hard copy to follow
via first class mail, postage prepaid) or (iii) one day after deposit with a
reputable overnight courier, in each case addressed to the intended recipient
as set forth below:
If to Iridium:
Iridium Operating LLC
1575 Eye Street, NW
Washington, D.C. 20005
Attention: [Vice President and Chief Financial Officer]
Telecopy #: (202) 408-3801
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If to Kyocera:
Kyocera Corporation
[address]
Attention: _____________
Telecopy #: ____________
7. Governing Law. This Agreement shall be governed by
the laws of the State of New York.
8. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instruments.
IN WITNESS WHEREOF, the parties have hereunto signed their
names in the space provided below as of the date first above written.
KYOCERA CORPORATION
By: _________________________
Name:
Title:
IRIDIUM OPERATING LLC
By: _________________________
Name:
Title:
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