Exhibit 99.1
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LORAL CYBERSTAR, INC.
AND
LORAL CYBERSTAR DATA SERVICES CORPORATION
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ASSET PURCHASE AGREEMENT
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for the purchase and sale
of
the assets of Loral CyberStar, Inc.'s
DATA SERVICES BUSINESS
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Dated as of
December 21, 2001
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TABLE OF CONTENTS
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Page
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SECTION 1. Definitions....................................... 1
SECTION 2. PURCHASE AND SALE OF THE PURCHASED ASSETS......... 4
SECTION 2.1. Transfer of Assets................................ 4
SECTION 2.2. Sale at Closing Date.............................. 4
SECTION 2.3. Payment of Purchase Price......................... 5
SECTION 2.4. Assumption of Liabilities......................... 5
SECTION 2.5. Subsequent Actions; Further Assurances............ 5
SECTION 3. CLOSING........................................... 6
SECTION 4. REPRESENTATIONS AND WARRANTIES.................... 6
SECTION 4.1. Mutual Representations and Warranties............. 6
SECTION 4.2. Additional Buyer Representation and Warranty...... 7
SECTION 5. COVENANTS......................................... 7
SECTION 5.1. Further Assurances................................ 7
SECTION 5.2. Taxes............................................. 7
SECTION 5.3. Indemnification of the Buyer by the Seller........ 7
SECTION 5.4. Procedures for Indemnification by the Seller...... 8
SECTION 5.5. Indemnification of the Seller by the Buyer........ 8
SECTION 5.6. Procedures for Indemnification by the Buyer....... 8
SECTION 6. MISCELLANEOUS..................................... 9
SECTION 6.1. Successors and Assigns.............................9
SECTION 6.2. Governing Law; Jurisdiction........................9
SECTION 6.3. Expenses...........................................9
SECTION 6.4. Severability.......................................9
SECTION 6.5. Notices........................................... 9
SECTION 6.6. Amendments; Waivers.............................. 10
SECTION 6.7. Entire Agreement................................. 10
SECTION 6.8. Parties in Interest.............................. 10
SECTION 6.9. Section and Paragraph Headings................... 10
SECTION 6.10. Counterparts..................................... 11
SCHEDULE A Contracts
SCHEDULE B Equipment and Machinery
SCHEDULE C Intellectual Property
SCHEDULE D Licenses and Permits
SCHEDULE E Subsidiary Transfer Documents
SCHEDULE F FCC Lease Agreement
THIS ASSET PURCHASE AGREEMENT, dated as of December 21, 2001, by and between
Loral CyberStar, Inc., a Delaware corporation (the "Seller") and Loral Cyberstar
Data Services Corporation, a Delaware corporation (the "Buyer").
W I T N E S S E T H:
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WHEREAS, the Seller has agreed to sell, convey, assign, grant, transfer and
deliver the assets making up the Data Services Business (as defined below) to
the Buyer on the terms and conditions set forth in this Agreement;
WHEREAS, the Buyer has agreed in turn to purchase, acquire and accept all
of the Seller's right, title and interest in the Data Services Business and
assume the liabilities related thereto on the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings:
"Assumed Liabilities" shall have the meaning set forth in Section 2.4;
"Business Day" shall man a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
close;
"Buyer" shall have the meaning set forth in the Recitals hereto;
"Buyer Indemnified Matters" shall have the meaning set forth in
Section 6.1;
"Buyer Indemnified Persons" shall have the meaning set forth in
Section 6.1;
"Closing" shall have the meaning set forth in Section 3;
"Closing Date" shall have the meaning set forth in Section 3;
"Contracts" shall mean all agreements to which the Seller is a party and
which are primarily related to the operation of the Data Services Business,
including, without limitation, purchase orders, sales orders, customer
contracts, ground operator contracts, capacity vendor contracts, engineering
contracts, security agreements, leases (including all real property and
equipment leases), partnership or joint venture agreements, employment,
commission and consulting agreements, suretyship contracts, loan agreements,
security agreements, reimbursement agreements, distribution agreements,
contracts or commitments limiting or restraining the Seller with respect to the
Data Services Business from engaging or competing in any lines of business or
with any person, firm or corporation, documents granting the power of attorney
with respect to the affairs of the Seller related to the Data Services Business,
agreements not made in the ordinary course of business of the Data Services
Business, options to purchase
any assets or property rights of the Data Services Business, and including, but
not limited to, all of the contracts listed on Schedule A hereto;
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"Data Services Business" shall mean those business activities, operations
and assets of the data services business provided by and through the Seller and
various of its subsidiaries, including, but not limited to, the provision of
managed communications networks and internet and intranet services and the
delivery of high-speed broadband data communications and business television and
infomedia services;
"Equipment and Machinery" shall mean all the equipment, machinery,
furniture, fixtures and improvements, tooling, spare parts, supplies and
vehicles owned or leased by the Seller with respect to the operations of the
Data Services Business, including, without limitation, the equipment and
machinery set forth on Schedule B hereto and any rights of the Seller to the
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warranties (to the extent assignable) and licenses received from manufacturers
and sellers of the aforesaid items;
"Excluded Assets" shall mean the assets of the Seller not constituting the
Purchased Assets to be conveyed to the Buyer or its designees hereunder,
including, but not limited to:
(i) any assets primarily related to the FSS Business;
(ii) all qualifications of the Seller to do business as a foreign
corporation and arrangements with registered agents relating to foreign
qualifications;
(iii) all taxpayer and other identification numbers of the Seller;
(iv) minute books, charter documents, stock record books, original tax
and financial records and such other books and records as pertain to the
organization, existence or capitalization of the Seller; and
(v) all shares of stock of the subsidiaries of the Seller; and
(vi) all books and records relating to any Excluded Assets or Excluded
Liabilities.
"Excluded Liabilities" shall have the meaning set forth in Section 2.4;
"Existing Public Notes" shall mean the Seller's 11 1/4% Senior Notes due
2007 and its 12 1/2% Senior Discount Notes due 2007;
"FCC" means the Federal Communications Commission (or any successor
Governmental Authority);
"FCC Lease Agreement" shall mean that certain lease agreement by and
between the Seller and the Buyer, dated as of the date hereof and substantially
in the form of Schedule C hereto;
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"FCC Licenses" means all licenses, authorizations, permits and construction
permits issued by the FCC to the Seller which are related to the Data Services
Business and listed on Schedule C hereto;
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"Files and Records" shall mean all files and records, whether in hard copy
or magnetic format, of the Seller or its subsidiaries specifically relating to
the Data Services Business or the Purchased Assets;
"FSS Business" shall mean the fixed satellite services business provided by
the Seller and Loral Asia Pacific Satellite (HK) Limited including, but not
limited to, leasing transponder capacity to customers for various applications,
including broadcasting, news gathering, internet access and transmission,
private voice and date networks, business television, distance learning and
direct-to-home television;
"Intangible Assets" shall mean all intangible personal property rights,
including, without limitation, all rights on the part of the Seller to proceeds
of any insurance policies and all claims on the part of the Seller for
recoupment, reimbursement and coverage under any insurance policies, in each
case in connection with the Data Services Business and all goodwill of the
Seller relating to the Data Services Business;
"Intellectual Property" shall mean (1) all letters, patent, patent
qualifications, trademarks, service marks, trade names, brands, private labels,
copyrights, know-how, trade secrets and licenses and rights with respect to the
foregoing that the Seller owns or possesses the rights to use relating primarily
to the Purchased Assets or the operations of the Data Services Business, (2)
patentable inventions, discoveries, improvements, ideas, know-how, formula,
methodology, processes, technology, software and applications and patents in any
jurisdiction relating primarily to the Purchased Assets or the operation of the
Data Services Business, (3) Internet Web sites, domain names and applications
and registrations relating primarily to the Purchased Assets or the operation of
the Data Services Business, (4) rights under all agreements relating to the
foregoing, and (5) including, without limitation, the intellectual property set
forth on Schedule D hereto;
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"Licenses and Permits" shall mean (1) all the network service provider
licenses, satellite landing licenses, satellite operator licenses, earth station
licenses, FCC Licenses and satellite, internet and broadcast licenses related to
the Data Services Business, including, but not limited to, the licenses and
permits set forth on Schedule E hereto, and (2) all government permits,
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authorizations and licenses issued by any national, state, local or other
domestic or foreign governmental authority used in the Data Services Business;
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien (statutory or other) or conditional sale agreement;
"Losses" shall have the meaning set forth in Section 6.1;
"New Public Notes" shall mean the Seller's 10% Senior Notes due 2006 and
guaranteed by Loral Space & Communications Ltd.;
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"Person" shall mean any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government;
"Purchased Assets" shall mean the Seller's accounts receivable relating
primarily to the Data Services Business, rights of the Seller under the
Contracts, Files and Records, Intangible Assets, Intellectual Property, Licenses
and Permits (to the extent transferable by the Seller), cash related primarily
to the Data Services Business, all rights of the Seller under the Subsidiary
Transfer Documents, real property relating primarily to the Data Services
Business and any assets or other property transferred, or to be transferred, to
the Seller under the Subsidiary Transfer Documents (whether so transferred on
the date hereof or thereafter), and any prepaid expenses and other assets
relating to the operations of the Data Services Business and includes all the
tangible and intangible assets of the Seller and its affiliates used in the Data
Services Business and related thereto, provided, however, in no event shall
Purchased Assets be deemed to include any of the Excluded Assets.
"Seller" shall have the meaning set forth in the Recitals hereto;
"Seller Indemnified Matters" shall have the meaning set forth in
Section 6.3;
"Seller Note" shall mean that certain Promissory Note of the Seller issued
to the Buyer in the aggregate principal amount of $50 million, dated as of
December 17, 2001;
"Subsidiary Transfer Documents" shall mean those certain bills of sale and
assignment and assumption agreements, each dated as of December 21, 2001, by and
between the Seller (as buyer) and various of its subsidiaries (as sellers) and
set forth on Schedule F hereto; and
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"Tax" or Taxes" shall mean all federal, state, local, foreign, tribal or
provincial taxes, charges, fees, levies, imposts, duties, tariffs, surcharges or
other assessments, including, without limitation, sales use, transfer, gross
receipts, excise, withholding, or any similar charges or assessments, value
added, goods and services, and all taxes, charges, fees, levies, imposts,
duties, tariffs, surcharges, or other assessments replaced by, or replacing, any
of the above, or other tax or governmental fee of any kind whatsoever imposed by
any governmental authority, including any interest or penalties or additions
thereto whether disputed or not.
SECTION 2. PURCHASE AND SALE OF THE PURCHASED ASSETS.
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SECTION 2.1. Transfer of Assets. Subject to the terms and conditions
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herein set forth (including Section 2.5(a)), the Seller shall sell, convey,
transfer, assign and deliver to the Buyer or its assignees, free and clear of
all Liens not related to the Data Services Business, and the Buyer shall (or
shall cause its assignees to) purchase and accept from the Seller, on the
Closing Date, all right, title and interest of the Seller in and to the
Purchased Assets, wherever located.
SECTION 2.2. Sale at Closing Date. The sale, transfer, assignment and
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delivery by the Seller of the Purchased Assets to the Buyer, or its assignees,
as herein provided, shall be effected on the Closing Date by deeds, bills of
sale, endorsements, assignments and other
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instruments of transfer and conveyance reasonably satisfactory in form and
substance to counsel for the Buyer.
SECTION 2.3. Payment of Purchase Price. As payment for the Purchased
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Assets, the Buyer will cancel the Seller Note on the Closing Date and deliver to
the Seller such cancelled note.
SECTION 2.4. Assumption of Liabilities. From and after the Closing, the
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Buyer shall assume and the Buyer hereby agrees to pay, perform and discharge
when due, all of the following liabilities of the Seller related to the Data
Services Business (the "Assumed Liabilities"):
(a) all liabilities, contingencies and obligations arising out of or
relating primarily to the conduct or operation of the Data Services Business, or
which otherwise relate primarily to the Purchased Assets;
(b) all liabilities, obligations and duties to perform any and all
Contracts and all commitments of any kind entered into by the Seller or its
subsidiaries on or prior to the Closing Date which relate primarily to the Data
Services Business or the Purchased Assets; and
(c) all liabilities arising from any action, litigation, suit,
investigation or proceeding, or from any and all present and future claims,
whether asserted or unasserted, contingent or executory, relating primarily to
or arising out of the Data Services Business or the Purchased Assets.
All the liabilities and obligations of the Seller other than the Assumed
Liabilities are hereinafter referred to as the "Excluded Liabilities" (such
Excluded Liabilities shall include, but are not limited to, all liabilities and
obligations of the Seller under or with respect to the Existing Public Notes,
the New Public Notes, the $29.7 million note of Seller issued to Loral SpaceCom
Corporation, and any liabilities of the Seller that relate primarily to the FSS
Business).
SECTION 2.5. Subsequent Actions; Further Assurances.
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(a) Notwithstanding anything herein to the contrary, none of the Purchased
Assets shall be assigned (i) contrary to law, (ii) contrary to the terms of any
contract, (iii) if such assignment will result in the loss of any license or
permit under applicable law or would otherwise result in an adverse effect on
the rights of the Buyer hereunder, (iv) if Buyer or its subsidiaries do not hold
required licenses and permits to operate such Purchased Assets, or (v) if such
assets are required to be held by a foreign subsidiary of the Buyer that has not
been formed as of the Closing Date or held by a registered foreign branch of the
Buyer that has not been duly registered as of the Closing Date. With respect to
Purchased Assets that cannot, for such reasons, be assigned to the Buyer on the
Closing Date, the Seller shall make the full economic benefits of such Purchased
Assets available to the Buyer, at the Buyer's expense, and, subject to
applicable law will operate such Purchased Assets, at Buyer's expense and at the
direction of the Buyer, in each case
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until such time as such Purchased Assets can be transferred to the Buyer. As
soon as practicable after the Seller becomes able to transfer any such
Purchased Assets to the Buyer, the Seller shall transfer such Purchased Assets
to the Buyer or its designees.
(b) At the Closing, the Sellers shall not transfer the FCC Licenses if
FCC consent to the assignment of the FCC Licenses from the Seller to the Buyer
has not been obtained. If consent of the FCC has not been obtained by the
Closing Date, then at Closing the Seller and the Buyer shall enter into a
Lease Agreement, substantially in the form of Schedule C, whereby the Buyer
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will have the right to use the licensed facilities and spectrum. When the
FCC's consent to the assignment is granted, the Seller shall assign the FCC
Licenses to the Buyer and the Lease Agreement shall terminate according to its
terms.
(c) The Seller shall use reasonable efforts to obtain all necessary
consents and approvals for the transfer of all Purchased Assets in the most
expeditious manner practicable, and the Buyer shall assist the Seller in
obtaining such approvals and consents, at the Buyer's expense.
(d) Upon the request of the Buyer at any time after the Closing Date,
the Seller shall forthwith execute and deliver such further instruments of
assignment, transfer, conveyance, endorsement, direction or authorization and
other documents as the Buyer or its counsel may reasonably request to perfect
title of the Buyer and its successors and assigns to the Purchased Assets or
otherwise to effectuate the purposes of this Agreement.
(e) Until February 28, 2002, or such earlier date as the Buyer shall
have delivered a transition services termination notice to the Seller, the
Seller will provide, or cause to be provided, to the Buyer those operational
and administrative support services that are being provided to the Data
Services Business by the Seller or its subsidiaries on the date hereof, at the
Buyer's expense.
SECTION 3. CLOSING.
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The closing hereunder (the "Closing") shall take place at the offices of
Xxxxxxx Xxxx & Xxxxxxxxx at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
12:01 a.m. on December 21, 2001, or at such other place and time as may be
mutually agreed to by the parties hereto (the "Closing Date").
SECTION 4. REPRESENTATIONS AND WARRANTIES.
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SECTION 4.1. Mutual Representations and Warranties. Each of the Seller and
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the Buyer hereby represents and warrants to the other party as follows:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite
corporate power and authority to own its properties and assets and to conduct
its businesses as now conducted; and
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(b) it has all requisite corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement and the performance of its obligations hereunder
have been duly authorized by all necessary corporate action by its Board of
Directors and stockholders, and no other corporate proceedings are necessary
to authorize such execution, delivery and performance. This Agreement has been
duly executed and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms.
SECTION 4.2. Additional Buyer Representation and Warranty. The Buyer hereby
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represents to Seller that none of the Purchased Assets include assets necessary
to the FSS Business.
SECTION 5. COVENANTS.
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SECTION 5.1. Further Assurances. The Buyer shall use reasonable efforts to
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(a) obtain all consents and approvals of third parties required to be obtained
by the Buyer to effect the transactions contemplated by this Agreement and (b)
to form any foreign subsidiaries or to register any foreign branches needed to
hold the Purchased Assets.
SECTION 5.2. Taxes.
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(a) The Buyer shall be financially responsible for, and shall pay, all
Taxes imposed on or otherwise related or attributable to transactions under
this Agreement whether or not such Taxes are actually charged or separately
stated.
(b) Both the Seller and the Buyer agree to co-operate and to use all
reasonable and available means to ensure compliance with the various legal,
tax, financial and commercial filings and other requirements and conditions
arising from the transfer of the Data Services Business as required by the
applicable United States or foreign laws.
(c) Each of the Seller and the Buyer agrees to bear one half of any
Taxes imposed on or otherwise related or attributable to transactions under the
Subsidiary Transfer Documents whether or not such Taxes are actually charged or
separately stated.
SECTION 6. INDEMNIFICATION.
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SECTION 6.1. Indemnification of the Buyer by the Seller. The Seller
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shall indemnify and fully defend, save and hold the Buyer, any affiliate of the
Buyer (other than the Seller and its subsidiaries) and its respective directors,
officers and employees (collectively, the "Buyer Indemnified Persons"), harmless
if any of them shall at any time or from time to time suffer any damage,
liability, loss, cost, expense (including all reasonable attorneys' fees),
deficiency, interest, penalty, impositions, assessments or fines (collectively,
"Losses") arising out of or resulting from, or shall pay or become obliged to
pay any sum on account of, any Buyer Indemnified Matters. As used herein, "Buyer
Indemnified Matters" shall be and mean any one or more of the following:
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(a) any failure of the Seller duly to perform or observe any of the
Seller's covenants contained in this Agreement; or
(b) any claim or cause of action by any party against the Buyer, with
respect to the Excluded Liabilities or the Excluded Assets.
SECTION 6.2. Procedures for Indemnification by the Seller. If a Buyer
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Indemnified Matter occurs or is alleged and the Buyer asserts that the Seller
has become obligated to the Buyer Indemnified Persons pursuant to Section 6.1,
or if any suit, action, investigation, claim or proceeding is begun, made or
instituted as a result of which the Seller may become obligated to the Buyer
Indemnified Persons hereunder, the Buyer shall give prompt written notice to the
Seller specifying in reasonable detail the facts upon which the claimed Buyer
Indemnified Matter is based; provided, however, that the failure to so notify
the Seller will not relieve the Seller of any obligation under Section 6.1 or
this Section 6.2 unless, and to the extent, the Buyer Indemnified Persons'
rights are materially prejudiced by such failure. The Seller will have the
right, at any time and at its election, to assume the defense of such suit,
action, investigation, claim or proceeding. The Buyer Indemnified Persons shall
have the right, but not the obligation, to participate at its own expense by
counsel of its choice in the defense of any suit, action, investigation, claim
or proceeding the defense of which the Seller shall have assumed and shall in
any event cooperate with and assist the Seller to the extent reasonably
possible. If the Seller elects not to assume the defense of any such suit,
action, investigation, claim or proceeding, the Buyer shall have the obligation
to do so, and shall have the right to make any reasonable compromise or
settlement thereof, and the cost of any such defense or settlement shall be
borne by the Seller.
SECTION 6.3. Indemnification of the Seller by the Buyer. The Buyer
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shall indemnify and agree to fully defend, save and hold the Seller, and its
respective directors, officers and employees, harmless if any of them shall at
any time or from time to time suffer any Losses arising out of or resulting
from, or shall pay or become obligated to pay any sum on account of, any Seller
Indemnified Matters. As used herein, "Seller Indemnified Matters" shall be and
mean any one or more of the following:
(a) any failure of the Buyer duly to perform or observe any of the
Buyer's covenants contained in this Agreement; or
(b) any claim or cause of action by any party against the Seller with
respect to Assumed Liabilities or Purchased Assets.
SECTION 6.4. Procedures for Indemnification by the Buyer. If a Seller
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Indemnified Matter occurs or is alleged and the Seller asserts that the Buyer
has become obligated to it pursuant to Section 6.3, or if any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which the Buyer may become obligated to the Seller hereunder, the Seller shall
give prompt, written notice to the Buyer specifying in reasonable detail the
facts upon which the claimed Seller Indemnified Matter is based; provided,
however, that the failure to so notify the Buyer will not relieve the Buyer of
any obligation under Section 6.3 or this Section 6.4 unless, and to the extent,
the Seller's rights are materially prejudiced by
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such failure. The Buyer will have the right, at any time and at its election,
to assume the defense of such suit, action, investigation, claim or proceeding.
The Seller shall have the right, but not the obligation, to participate at its
own expense by counsel of its choice in the defense of any suit, action,
investigation, claim or proceeding the defense of which the Seller shall have
assumed and shall in any event cooperate with and assist the Buyer to the extent
reasonably possible. If the Buyer elects not to assume the defense of any such
suit, action, investigation, claim or proceeding, the Seller shall have the
obligation to do so, and shall have the right to make any reasonable compromise
or settlement thereof, and the cost of any such defense or settlement shall be
borne by the Buyer.
SECTION 7. MISCELLANEOUS.
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SECTION 7.1. Successors and Assigns. The Buyer shall have the ability
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to assign its rights and obligations hereunder to its subsidiaries, affiliates
and designated assignees, provided, however, that no such assignment shall
reduce or otherwise vitiate any of the obligations of the Seller hereunder. This
Agreement shall inure to the benefit of and shall be binding upon the successors
and permitted assigns of the parties hereto.
SECTION 7.2. Governing Law; Jurisdiction. This Agreement shall be
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construed, performed and enforced in accordance with, and governed by, the laws
of the State of New York, without giving effect to the principles of conflicts
of laws thereof. The parties hereto irrevocably elect as the sole judicial forum
for the adjudication of any matters arising under or in connection with this
Agreement, and consent to the jurisdiction of, the courts of the County of New
York, State of New York or of the United States of America for the Southern
District of New York.
SECTION 7.3. Expenses. Except as otherwise provided herein, all
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expenses in connection with this Agreement and the transactions contemplated
hereby, including, without limitation, any legal and accounting fees, whether or
not the transactions contemplated hereby are consummated, shall be paid by the
Buyer.
SECTION 7.4. Severability. In the event that any part of this Agreement is
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declared by any court or other judicial or administrative body to be null, void
or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in full
force and effect.
SECTION 7.5. Notices. All notices, requests, demands and other
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communications under this Agreement shall be in writing and shall be deemed to
have been duly given: (i) on the date of service if served personally on the
party to whom notice is to be given; (ii) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, and telephonic
confirmation of receipt is obtained promptly after completion of transmission;
(iii) on the day after delivery to Federal Express or similar overnight courier
or the Express Mail service maintained by the United States Postal Service; or
(iv) on the fifth day after mailing, if mailed to the party to whom notice is to
be given, by first class mail, registered or certified, postage prepaid and
properly addressed, to the party as follows:
If to the Seller:
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Loral CyberStar, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
If to the Buyer:
Loral Cyberstar Data Services Corporation
c/o Loral Space & Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
Any party may change its address for the purpose of this Section by giving
the other party written notice of its new address in the manner set forth above.
SECTION 7.6. Amendments; Waivers. This Agreement may be amended or
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modified, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any provision, term,
covenant, representation or warranty contained in this Agreement, in any one or
more instances, shall not be deemed to be nor construed as furthering or
continuing waiver of any such condition, or of the breach of any other
provision, term, covenant, representation or warranty of this Agreement.
SECTION 7.7. Entire Agreement. This Agreement contains the entire
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understanding between the parties hereto with respect to the transactions
contemplated hereby and supercedes and replaces all prior and contemporaneous
agreements and understandings, oral or written, with regard to such
transactions. All schedules hereto and any documents and instruments delivered
pursuant to any provision hereof are expressly made a part of this Agreement as
fully as though completely set forth herein.
SECTION 7.8. Parties in Interest. Nothing in this Agreement is intended to
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confer any rights or remedies under or by reason of this Agreement on any
persons other than the Seller and the Buyer and their respective successors and
permitted assigns. Nothing in this Agreement is intended to relieve or discharge
the obligations or liability of any third persons to the Seller or the Buyer. No
provision of this Agreement shall give any third persons any right of
subrogation or action over or against the Seller or the Buyer.
SECTION 7.9. Section and Paragraph Headings. The section and paragraph
------------------------------
headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
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SECTION 7.10. Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original, but both of which shall
constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
date first above written.
LORAL CYBERSTAR, INC.,
as Seller
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR DATA SERVICES CORPORATION,
as Buyer
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President and Assistant Secretary
[ASSET PURCHASE AGREEMENT]
SCHEDULE A
Contracts
SCHEDULE B
Equipment and Machinery
SCHEDULE C
FCC Lease Agreement
SCHEDULE D
Intellectual Property
SCHEDULE E
Licenses and Permits
SCHEDULE F
Seller Subsidiary Transfer Documents
1. Xxxx of Sale, Assignment & Assumption Agreement by and between Loral
CyberStar, Inc., as buyer, and Loral CyberStar de Argentina SRL, as seller,
dated as of December 21, 2001.
2. Xxxx of Sale, Assignment & Assumption Agreement by and between Loral
CyberStar, Inc., as buyer and Loral CyberStar do Brasil Ltda., as seller, dated
as of December 21, 2001.
3. Xxxx of Sale, Assignment & Assumption Agreement by and between Loral
CyberStar, Inc., as buyer, and Loral CyberStar International, Inc., as seller,
dated as of December 21, 2001.
4. Xxxx of Sale, Assignment & Assumption Agreement by and between Loral
CyberStar, Inc., as buyer, and Loral CyberStar Services, Inc., as seller, dated
as of December 21, 2001.
5. Xxxx of Sale, Assignment & Assumption Agreement by and between Loral
CyberStar, Inc., as buyer, and Tel-Link Communications Private Limited, as
seller, dated as of December 21, 2001.
6. Xxxx of Sale, Assignment & Assumption Agreement by and between Loral
CyberStar, Inc., as buyer, and Loral Cyberstar GmbH, as seller, dated as of
December 21, 2001
