Exhibit 10.5


 


 


USD 153,000,000


SUBORDINATED INTERCOMPANY
LOAN AGREEMENT


dated 2
November 2004


 


between


 


New Skies Satellites B.V.


as Borrower


 


and


 


New Skies Holding B.V.


 


as Lender


 


 





 


Strawinskylaan
1999


1077 XV
Amsterdam


 


 





















 


THIS AGREEMENT is dated 2 November 2004 and made between:


 


1.                                     New Skies Satellites B.V. (the “Borrower”); and


 


2.                                     New Skies Holding B.V. (the “Lender”);


 


IT IS AGREED as follows:


 


1.                                     DEFINITIONS AND
INTERPRETATION


 


1.1.                           Definitions


 


In this Agreement:


 


	
  “Agreement”

  	
   

  	
  means this subordinated intercompany loan agreement,
  as amended or restated.

  
	
   

  	
   

  	
   

  
	
  “Borrower”

  	
   

  	
  means New Skies Satellites B.V.

  
	
   

  	
   

  	
   

  
	
  “Business Day”

  	
   

  	
  means a day (other than a Saturday or Sunday) on
  which banks are open for general business in Amsterdam (the Netherlands), provided
  that for the determination of an interest rate, a Business Day shall also
  mean a day (other than a Saturday or Sunday) on which banks are open for
  general business in London (United Kingdom).

  
	
   

  	
   

  	
   

  
	
  “Event of Default”

  	
   

  	
  means any event or circumstance specified as such in
  Clause 10 (Events of Default).

  
	
   

  	
   

  	
   

  
	
  “Lender”

  	
   

  	
  means New Skies Holding B.V.

  
	
   

  	
   

  	
   

  
	
  “Loan”

  	
   

  	
  means the loan granted by the Lender to the Borrower
  as described in Clause 2 of the Agreement or the principal amount outstanding
  for the time being of that loan.

  
	
   

  	
   

  	
   

  
	
  “Maturity Date”

  	
   

  	
  1 April 2014.

  
	
   

  	
   

  	
   

  
	
  “Party”

  	
   

  	
  means a party to this Agreement.

  



 


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1.2.                           Construction


a.                                      Unless a contrary indication appears, any reference in this
Agreement (including Annex A hereto) to:


 


i.                                         the “Borrower” and the “Lender” shall be construed so as to include their successors
in title, permitted assigns and permitted transferees;


 


ii.                                      “assets” includes present and future properties, revenues and
rights of every description;


 


iii.                                   “include”, “included” and “including” are used to indicate that the matters listed are
not a complete enumeration of all matters covered;


 


iv.                                  “indebtedness” includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money, whether present
or future, actual or contingent;


 


v.                                     a
“person” includes any person, firm,
company, corporation, government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal personality) or two
or more of the foregoing;


 


vi.                                  a
provision of law is a reference to that provision as amended or re-enacted; and


 


vii.                               unless
otherwise specified, a time of day is a reference to Amsterdam time.


 


b.                                     Headings are for ease of reference only.


 


c.                                      An
Event of Default is “continuing” if it has not been remedied or waived;


 


d.                                     Words
importing the plural shall include the singular and vice versa.


 


2.                                     THE LOAN


 


2.1.                           The Loan


Subject to the terms of this Agreement, the Lender undertakes
to lend to the


 


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Borrower and the Borrower undertakes to borrow the principal
amount of USD 153,000,000, the sum to be granted and the amount thereof
outstanding at any time to be hereinafter referred to as the “Loan”.


 


3.                                     PURPOSE


 


The Borrower shall apply all amounts borrowed by it
under the Loan for the acquisition of substantially all of the assets of New
Skies Satellites N.V. and expenses incurred in connection therewith.


 


4.                                     DRAWDOWN


 


The Lender undertakes to make available and the
Borrower undertakes to draw down the Loan in full on November 2, 2004 (the “Drawdown
Date”). The Loan shall be made available on the aforementioned date by the
Lender by paying the amount thereof to the Borrower’s bank account.


 


5.                                     REPAYMENT/ PREPAYMENT


 


5.1.                           Repayment


On the Maturity Date the Borrower shall, subject to
Clause 7 (Subordination), repay the Loan in full to the Lender, together with
all accrued interest.


 


5.2.                           Prepayment


After the Senior Debt Discharge Date, the
Borrower may freely prepay to the Lender any part of the Loan, with prior
written notice to the Lender at least five Business Days before the prepayment
date at the latest. Any part of the Loan which is prepaid may be reborrowed.


 


6.                                     INTEREST


 


6.1.                           Interest


The interest rate due on the amount of the Loan shall
be 11.5 per cent per annum, computed based on a 365/366 day year and the actual
number of days elapsed, and will be due as from the payment of the Loan up to
its complete repayment.


 


6.2.                           Payment of Interest


Interest accrues into the principal amount of the Loan
annually on a 365/366 day year and, subject to Clause 7 (Subordination), is
payable in cash only upon maturity. The period for accruing interest is, in
relation to the initial accrual period, the period commencing on the Drawdown Date
as described in Clause


 


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4 and ending on 30 June 2005 and, in relation to each
subsequent accrual period, the period commencing immediately after the end of
the previous accrual period and ending twelve months thereafter. Accrued, but unpaid
interest, shall be compounded into existing principal annually and shall earn
interest at the rate described in Clause 6.1 on the subsequent periods.


 


7.                                     SUBORDINATION


 


The Parties hereto agree that the rights of the Lender
to receive and retain payment from the Borrower under this Agreement, shall be
subject to the subordination terms contained in Annex A hereto, which terms are
deemed to be incorporated herein in their entirety.


 


8.                                     TAX GROSS UP


 


All payments to be made by the Borrower to the Lender
hereunder shall be made in USD to such account with such bank as may be advised
by the Lender from time to time, in full without set-off or deduction of any
kind on account of taxes or otherwise. In the event that the Borrower is
required by law to deduct any tax or other sum from any payment, it shall pay
and bear such additional amount as shall be necessary such that the Lender
receives the full amount of the payment required as if no such deduction were
required.


 


9.                                     NOTIFICATION OF DEFAULT


 


a.                                      The
Borrower shall notify the Lender of any Event of Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its occurrence.


 


b.                                     Promptly
upon a reasonable request by the Lender, the Borrower shall supply to the Lender
a certificate signed by two of its Managing Directors certifying that no Event
of Default is continuing (or if an Event of Default is continuing, specifying
the Event of Default and the steps, if any, being taken to remedy it).


 


10.                              EVENTS OF DEFAULT


 


Each of the events or circumstances set out in this Clause
(Events of default) is an Event of Default.


 


10.1                       Non-payment


The Borrower does not pay on the due date any amount
payable pursuant to


 


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this Loan at the place at and in the currency in which
it is expressed to be payable unless:


 


a.                                      its failure to pay is caused by administrative or technical error;
and


 


b.                                     payment is made within five Business Days of its due date.


 


10.2                       Other
obligations


The Borrower does not comply with any provision of this
Agreement (other than those referred to in Clause 10.1 (Non-payment)).
No Event of Default under this Clause (Other obligations)
will occur if the failure to comply is capable of remedy and is remedied within
15 Business Days of the Lender giving notice to the Borrower or the Borrower
becoming aware of the failure to comply.


 


10.3                       Insolvency


The Borrower admits inability to pay its debts as they
fall due or suspends making payments on any of its debts.


 


10.4                       Insolvency
proceedings


Any corporate action, legal proceedings or other
procedure or step is taken in relation to:


 


a.                                      the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of the Borrower;


 


b.                                     a
composition, assignment or arrangement with any creditor of the Borrower;


 


c.                                      the
appointment of a liquidator (vereffenaar),
receiver (curator) or administrator (bewindvoerder) or other similar officer in any other
jurisdiction in respect of the Borrower or any of its assets; or


 


d.                                     enforcement
of any security over any assets of the Borrower, or any analogous procedure or
step is taken in any jurisdiction.


 


10.5                       Creditors’
process


Any expropriation, attachment, sequestration, distress
or execution affects any asset or assets of the Borrower having an aggregate
value of USD 50,000 and is not discharged within 30 Business Days.


 


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10.6                       Unlawfulness


It is or becomes unlawful for the Borrower to perform
any of its obligations under this Agreement.


 


10.7                       Acceleration


On and at any time after the occurrence of an Event of
Default which is continuing the Lender may, subject to Clause 7 (Subordination),
by notice to the Borrower:


 


a.                                      cancel
the Loans outstanding at that moment whereupon they shall immediately be
cancelled;


 


b.                                     declare
that all or part of the Loans, together with accrued interest, and all other
amounts accrued or outstanding under this Agreement be immediately due and
payable, whereupon they shall become immediately due and payable; and/or


 


c.                                      declare
that all or part of the Loans be payable on demand, whereupon they shall immediately
become payable on demand by the Lender.


 


11.                              CHANGES TO THE PARTIES


 


The Lender may at any time assign, pledge or otherwise
transfer all or any part of its rights or obligations under this Agreement to
any third party, provided that any such assignment, pledge or transfer shall be
expressly subject to the terms hereof (including the terms of Annex A) and
shall take into account any limitations resulting from the Act on the
Supervision of Credit Institutions 1992 (Wet
toezicht kredietwezen 1992) and any regulations promulgated thereunder.
The rights of the Borrower hereunder can not be assigned, pledged or otherwise
transferred without the prior written consent of the Lender.


 


12                                 NOTICES


 


12.1                       Communications
in writing


Any communication to be made under or in connection
with this Agreement shall be made in writing and, unless otherwise stated, may
be made by fax or letter.


 


12.2                       Addresses


The address and fax number (and the department or
officer, if any, for whose attention the communication is to be made) of each Party
for any communication


 


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or document to be made or delivered under or in
connection with this Agreement is:


 


a.                                      in the case of the Borrower, that identified with its name below;


 


b.                                     in
the case of the Lender, that identified with its name below,


 


or any substitute address or fax number or department
or officer as the Party may notify to the other Party by not less than five Business
Days’ notice.


 


12.3                       Delivery


Any communication or document made or delivered by one
Party to another under or in connection with this Agreement will only be effective:


 


a.                                      if
by way of fax, when received in legible form; or


 


b.                                     if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an envelope
addressed to it at that address.


 


12.4                       English
language


a.                                      Any
communication under or in connection with this Agreement must be in English.


 


b.                                     English
language words used in this Agreement intend to describe Netherlands legal
concepts only and the consequences of the use of those words in English law or
any other foreign law are to be disregarded.


 


13.                              ENTIRE AGREEMENT
AND  PARTIAL INVALIDITY


 


13.1                       Entire
agreement


This Agreement contains the entire and only agreement
between the Parties with respect to the subject-matter covered by it and supersedes
all earlier agreements and understandings, whether oral, written or otherwise,
between the Parties.


 


13.2                       Partial
invalidity


If, at any time, any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision under
the law of any other jurisdiction will in any way be affected or impaired.


 


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14.                              REMEDIES AND WAIVERS


 


No failure to exercise, nor any delay in exercising,
on the part of the Lender, any right or remedy under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.


 


15.                              COUNTERPARTS


 


This Agreement may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.


 


16.                              GOVERNING LAW


 


This Agreement is governed by the law of the
Netherlands.


 


17.                              ENFORCEMENT


 


17.1                       Jurisdiction


The courts of Amsterdam, the Netherlands have
exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute regarding the existence, validity or termination
of this Agreement).


 


This Agreement has been entered into on the date
stated at the beginning of this Agreement.


 


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  New Skies Satellites B.V.

  	
   

  	
  New Skies Holding B.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Walid Kamhawi

  	
   

  	
   

  	
  /s/ Walid Kamhawi

  	
   

  
	
  By:

  	
  Walid Kamhawi

  	
   

  	
   

  	
  By:

  	
  Walid Kamhawi

  	
   

  
	
  Title:

  	
  Managing Director

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  For acceptance of the third party
  stipulation made for its benefit in Clause 7 hereof only:

  
	
   

  	
   

  	
   

  
	
  Deutsche Bank AG, New York Branch

  	
   

  	
   

  
	
  On behalf of the lenders under the Credit
  Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Gregory Shefrin

  	
   

  	
   

  	
  /s/ Susan LeFevre

  	
   

  
	
  By:

  	
  Gregory Shefrin

  	
   

  	
   

  	
  By:

  	
  Susan LeFevre

  	
   

  
	
  Title:

  	
  Director

  	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
  U.S. Bank National Association

  	
   

  	
   

  
	
  As Trustee for the holders of Senior Notes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ R. Prokosch

  	
   

  	
   

  	
   

  
	
  By:

  	
  Richard Prokosch

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  U.S. Bank National Association

  	
   

  	
   

  
	
  As Trustee for the holders of Senior
  Subordinated Notes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ R. Prokosch

  	
   

  	
   

  	
   

  
	
  By:

  	
  Richard Prokosch

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  	
   

  
								



 


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