EXHIBIT 10.41


 


AGREEMENT


 


This Agreement (this “Agreement”)
is entered into as of 11 July 2005 by and between SES Global Satellite
Leasing Limited, an Isle of Man company with offices at 15-19 Athol Street,
Douglas, Isle of Man IMI 1LB (“SES”), and New Skies Satellites B.V. (“NSS”),
a Dutch limited liability company with offices at Rooseveltplantsoen 4, 2517
KR, The Hague, The Netherlands.


 


WHEREAS, the Government of
the Netherlands (the “Dutch Government”) secured rights to operate a
telecommunications satellite at the 125° West Longitude orbital arc position (“125°
West”) using the FSS frequencies pursuant to the “NSS-6” filing (CR/C/265) (the
“NSS-6 Filing” or “FSS Filing”) and using the BSS frequencies pursuant to the “NSS-10 BSS” filing or
(AP30-30A/E/305) (the “NSS-10 Filing” or “BSS Filing”)
(the NSS-6 and the NSS-10 Filings being collectively referred to as the “NSS
Filings”) made by the Dutch Government with the International Telecommunication
Union (“ITU”) in accordance with the Radio Regulations of the ITU; and


 


WHEREAS, the Dutch
Government granted NSS the exclusive right to operate a satellite at 125° West
and exploit the rights afforded under the NSS Filings relating to such orbital
position (the “NSS Authorization”); and


 


WHEREAS, other Administrations
have also secured rights under filings (“Other Filings”) made with the
ITU under which SES or an SES Affiliate (as defined in Section 2 (a) (i))
or an entity in which SES is interested is or will be authorized to operate a
telecommunications satellite at 125° West or at an orbital position adjacent or
nearby to 125° West using certain of the Ku-band frequencies overlapping with
those contained in the NSS Filings (the “Overlapping Frequencies”). In
this Agreement and for the avoidance of doubt, the phrases “Ku-band frequencies”
or “Ku-band frequency assignments” shall include frequencies in the
10.95-11.2,11.45-12.75,13.75-14.5 and 17.3-17.8 GHz bands.


 


NOW THEREFORE, in
consideration of the foregoing premises and the parties’ respective covenants
and agreements and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:


 


1. Exclusivity
Period. In consideration of SES’ payment of an option grant fee in the
amount of US$500,000 (the “Option Grant Fee”) in accordance with Section 6
below, NSS agrees as follows:


 


(a)          From the date of this Agreement until 5:00 pm GMT on August 4,
2005 (the “Exclusivity Period”), NSS shall not


i.                  enter into any legally binding commitment or
agreement with any third party nor


ii.               in any way act or fail to act in a manner, 


that could reasonably be
deemed to prohibit or materially prejudice SES from exercising, or
substantially enjoying the benefits to be derived from the exercise of, the
Option (as defined in Section l(b) below). SES may extend


 

















 


the Exclusivity Period on a
day-to-day basis up to 5:00 pm GMT on August 11, 2005 or such longer
period as the parties may agree by (i) providing at least 72 hours
advance written notice to NSS before the first such extension and 24 hours
advance written notice before each extension thereafter stating the date until
which such an extension is requested and (ii) paying the sum of US$50,000
per day for each weekday (i.e., excluding Saturday and Sunday) to be included
in the extension period in accordance with Section 6 below. Such
additional amounts shall be deemed to be added to and a part of the Option
Grant Fee.


 


(b)         NSS hereby grants SES the exclusive right but not the obligation to
exercise the option described in Section 2 below (the “Option”) at
any time prior to the expiration of the Exclusively Period. Subject to payment
be SES of the Option Grant Fee, the Option shall not be revocable by NSS during
the Exclusivity Period. In order to exercise the Option, SES shall deliver to
NSS prior to the expiration of the Exclusivity Period a written notice of
exercise in which SES states the SES Preferred Method of Proceeding (as defined
in Section 2 below).


 


(c)          Notwithstanding the foregoing, nothing in this provision shall be
deemed to prevent NSS from entering into discussions with any third party for
the purpose of permitting NSS (or its designee) to bring the NSS Filings into
use at 125° West in the event (or in anticipation of the event) that SES
chooses not to exercise the Option granted hereunder.


 


2. Description of the
Option


 


Upon exercise of the Option
by SES in the manner described in Section l(b), SES shall be entitled to
require NSS to take actions in accordance with Sections 2(a) and (b) below,
as determined by SES in its sole discretion, in respect of the FSS Filing and
the BSS Filing, respectively, and NSS shall be obliged accordingly to so act:


 


(a) FSS Filing.
SES shall be entitled to elect (on a one-time only basis) either to (i) be
authorized to bring the FSS Frequencies at 125° West into use using the FSS
Filing (the “Dutch Method”) or (ii) be authorized to bring
the FSS Frequencies into use at 125° West using one of the Other Filings (not
being the FSS Filing) (the “non-Dutch Method”). SES’ election of the
Dutch Method or the non-Dutch Method shall be stated clearly in its notice of
exercise in accordance with Section l(b) above and shall be referred
to herein as the “SES Preferred Method of Proceeding.”


 


(i) Dutch Method.
In the event that SES elects the Dutch Method as the SES Preferred Method of
Proceeding, then NSS shall use commercial best efforts to procure, within a
period of sixty (60) days of the date of SES’ election, that SES or such
affiliate of SES as SES shall in its sole discretion determine (including,
without limitation, a corporate entity which SES shall cause at NSS’ request to
be established in the Netherlands if such an entity is legally required or
necessary to be established in order to obtain the relevant authorization and
which entity shall be owned or controlled directly or indirectly by SES Global
S.A.) (an “SES


 


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Affiliate”) shall become validly and exclusively
authorized by the Dutch Government to operate a satellite (and a follow-on
satellite) at 125° West under the FSS Filing and to exploit the rights afforded
under the FSS Filing relating to such orbital position without material
negative limitation or condition, other than conditions (i) stated in or
arising from the FSS Filing under the Radio Regulations of the ITU, or (ii) those
relating to compliance with general provisions of Dutch law and regulation,
(hereinafter “without material condition or limitation”). NSS shall use
commercial best efforts to procure that such authorization and licensing by the
Dutch Government will be achieved in consultation with SES by one of the
following means:


 


(A) Direct grant of
authorization by the Dutch Government to SES or an SES Affiliate under the FSS Filing;
or


 


(B) Assignment and
transfer of NSS’ rights under the NSS Authorization and all ancillary rights
and licenses by NSS to SES or an SES Affiliate by executing and delivering to
SES a legally binding deed of assignment (or similar legal instrument) in such form as
SES may reasonably require (provided that such requirements shall not
exceed those necessary to give legal effect to such assignment consistent with
the intent and purpose of this Section 2(a)(i)) and which the parties
shall use commercial best efforts to conclude expeditiously (in which case, NSS
shall use commercial best efforts to cause the Dutch Government to consent in
writing to such assignment and transfer without material limitation or
condition); or


 


(C) As a least
preferred alternative (and consequently NSS shall use reasonable endeavours to
secure means (A) or (B) in preference to this means (C), due
allowance being given to the amount of time required), sub-license of the
rights granted to NSS under its authorization of NSS to use the FSS Filing by
the Dutch Government and all ancillary rights and licenses to SES by executing
and delivering to SES a legally binding sub-license (or similar legal
instrument) in such form as SES may reasonably require (provided that
such requirements shall not exceed those necessary to give legal effect to such
sublicense consistent with the intent and purpose of this Section 2(a)(i))
and which the parties shall use commercial best efforts to conclude expeditiously
(in which case, NSS shall use commercial best efforts to cause the Dutch
Government to consent to such sub-license without material condition or
limitation); or


 


(D) Such other lawful
means as may result in SES or an SES Affiliate becoming authorized to
operate a satellite at 125° West under the FSS Filing.


 


(ii) Non-Dutch
Method. In the event that SES elects the non-Dutch Method as the SES
Preferred Method of Proceeding, then NSS at its option and in consultation with
SES shall either:


 


(A)      use commercial best efforts to cause the Dutch Government to deliver,


 


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within sixty (60) calendar
days of the date of exercise of the Option or such longer period as the parties
may agree in writing, a letter substantially in the form of Exhibit A
(or a letter having substantially the same intent and effect and providing
substantially the same benefit to SES) to the particular Administration
identified by SES In respect of 125° West or an orbital position adjacent or
nearby to 125° West (the “Coordination Letter”); or


 


(B)        prior to the date of expiry of the FSS Filing, not operate nor
authorize the operation of a satellite at 125° West under the FSS Filing. For
avoidance of doubt, NSS shall comply with all of its obligations under this Section 2(a)(ii) by
not bringing 125° West into use under the FSS Filing prior to such date. NSS
shall use its commercial best efforts to cause the Dutch Government to notify
the ITU in writing within the following 90 days that 125° West has not been
brought into use (and, NSS shall provide SES with a copy of any such
notification).


 


(b) BSS Filing.
The Parties acknowledge and agree that the primary purpose of the Option is to
provide authorization to SES under the FSS Filing as contemplated in Section 2(a).
Nevertheless, in the event that SES exercises the Option, then regardless of the
SES Preferred Method of Proceeding selected by SES with respect to the FSS
Filing, NSS shall also use reasonable commercial efforts to procure, within one
hundred and eighty (180) days of the date of SES’ election, that SES or an SES
Affiliate shall become validly and exclusively authorized by the Dutch
Government to operate a satellite (and a follow-on satellite) at 125° West
under the BSS Filing and to exploit the rights afforded under the BSS Filing
relating to such orbital position by any of the means described in Section 2(a)(i)(A)-(D) above
without material condition or limitation.


 


(c) Further
Undertakings. In the event that SES exercises the Option, the Parties
further agree:


 


(i)             Risk of Failure to Locate a Satellite at 125°
West. In the event that SES
elects the Dutch Method as the SES Preferred Method of Proceeding, SES bears in
its entirety any regulatory risk (with either the Dutch Government, the ITU or
any other relevant authority) associated with losing (or failing to satisfy any
condition in) any necessary authorization if such risk arises from the failure
or refusal of SES either to locate an appropriate satellite at 125° West or to
operate a satellite at 125° West within the parameters prescribed by the FSS
Filing or any relevant law or regulation.


 


(ii)          Regulatory Cooperation. In the event that SES elects the Dutch
Method as the SES Preferred Method of Proceeding and NSS procures authorization
for SES or an SES Affiliate to use 125° West through a method other than direct
authorization as described under Section 2(a)(i)(A)-(B) above (or
similar provision for the BSS Filing), then NSS and SES (or the relevant SES
Affiliate) shall cooperate in good faith, using reasonable commercial efforts
to participate in ITU or other regulatory or coordination proceedings to


 


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permit the relevant
authorized entity to fulfill obligations that may be necessary to maintain
the authorization and comply with applicable law and regulation.


 


In this regard, such efforts
to maintain the authorization and comply with applicable law and regulation
shall include the following:


 


•                  NSS
shall promptly provide SES with details of all correspondence received by NSS and
the Dutch Government related to ITU matters associated with the NSS Filings,


 


•                  NSS
shall take such actions on SES’s behalf as SES may reasonably direct that
are necessary to assist the Dutch Government in progressing the coordination of
the NSS Filings, including requesting the Dutch Government to send letters
regarding the coordination to other administrations or to the ITU,


 


•                  NSS
shall support the Dutch Government in connection with the NSS Filings by
responding in consultation with SES in respect of matters that may from
time to time occur in the normal course of business, including without
limitation, filing fees discussions, space law issues,


 


•                  NSS
shall provide complete extracts of all relevant provisions of frequency coordination
agreements in respect of the NSS Filings entered into by NSS, together with the
summary referred to in Section 9 (g), prior to exercise of the Option and
NSS shall not enter into any further agreements affecting the NSS Filings
without SES’s prior approval in writing. NSS agrees that, during the
Exclusivity Period and, subject to exercise of the Option, thereafter, it shall
not take any action or omit to take any action which has any negative affect on
the said summary, and


 


•                  NSS
shall take such actions on SES’s behalf as SES may reasonably direct that
are necessary to require the Dutch Government to protect the NSS Filings,
including without limitation the resolution of any interference event.


 


Notwithstanding the
foregoing, the efforts required of NSS herein shall not mean that NSS has
responsibility to develop the FSS or BSS Filings except as expressly provided
in the last sentence of this paragraph, including responsibility for successful
coordination of the FSS or BSS Filing, participation in proceedings of the US Federal
Communications Commission or other national regulatory bodies outside of the
Netherlands, successful resolution of any interference events, or engaging in
public advocacy of SES or its commercial concerns at the ITU or other
regulatory fora. For avoidance of doubt, SES shall be ultimately responsible
for any such activities. In the event that NSS agrees to make any such efforts
at SES’ requests, then NSS shall be entitled to be reimbursed by SES for such
efforts at reasonable and customary time and material rates.


 


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(iii)       Provision of TT&C.
In the event that SES elects the Dutch Method as the SES Preferred Method of
Proceeding and is required by the relevant Dutch Government authorization to
provide satellite operations control (TT&C) of the satellite located by SES
at 125° West from the territory of The Netherlands, then NSS agrees to enter
into customary commercial arrangements with SES or an SES Affiliate in order to
provide such services from its facilities in The Netherlands (but only
for so long as NSS maintains such facilities in The Netherlands) for service
fees no greater than NSS’ average cost to provide such service for NSS’ own
satellites, provided, however, that SES shall bear any costs associated with
providing the necessary equipment (including software), trained personnel and
regulatory approvals (including, without limitation, US International Traffic
in Arms Regulations (ITAR) approvals) to permit NSS to provide TT&C service
to such satellite. NSS shall cooperate as necessary with SES to secure such
regulatory approvals, including without limitation by concluding with SES a
technical assistance agreement in agreed form so as to obtain such ITAR
approvals.


 


(iv)      Regulatory Risk under Other Filings. In the event that SES elects the non-Dutch Method as the SES
Preferred Method of Proceeding, SES bears in its entirety any regulatory risk
(with either the ITU or the relevant regulatory authority in any country other
than the Netherlands) that SES may not be able to operate a satellite at
125° West under any Other Filings, except in the event that such inability is
the result of NSS’ failure to comply with its obligations under 2(a)(ii).


 


(v)         Other Notifications. In
the event that SES elects the non-Dutch Method as the SES Preferred Method of
Proceeding, and NSS subsequently elects the course of action described in Section 2(a)(ii)(A),
then NSS shall procure that copies of the Coordination Letter and all
applicable notifications are properly delivered to and made by the Dutch
Government at the ITU in a timely fashion. NSS shall provide SES with a copy of
the Coordination Letter following delivery of it by the Dutch Government to the
particular administration described in Section 2(a)(ii)(A).


 


(vi)      Other regulatory approvals. In the event that SES elects to exercise the Option, then it shall be
the responsibility of SES to procure any and all regulatory approvals (except
as otherwise contemplated in Section 2(a)-(b) above) in any relevant
jurisdiction that may be necessary to operate a satellite at 125° West.
Without limitation, it shall be the responsibility of SES to obtain any ITAR
approvals and, as the case may be, market access approvals from national regulatory authorities other than the Netherlands for SES and the SES Affiliate
to implement the undertakings in this Agreement. In the event that SES elects
the Dutch Method as the SES Preferred Method of Proceeding and NSS procures
authorization for SES or an SES Affiliate to use 125° West through a method
other than direct authorization as described under Section 2(a)(i)(A)-(B)
above (or similar provision for the BSS Filing), NSS acknowledges that its
continued cooperation may be required to secure


 


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certain regulatory approvals
from the Dutch Government as well as the aforementioned market access approvals
and agrees to provide (at SES’ expense) such support as may be reasonably
necessary to obtain, or avoid the requirement to obtain, such approvals.


 


(vii)   Non-objection to Other Filings. Subject to
the last sentence of this Section 2(c)(vii), in the event that SES elects
to exercise the Option, then NSS shall not object in any forum if SES or an SES
Affiliate or any entity permitted or authorized by SES brings into use any of
the NSS Filings or any of the Other Filings by operating a spacecraft operating
transponders using the Overlapping Frequencies nor shall it object in any forum
to any filing made or approval sought pursuant to or in connection with the NSS
Filings or the Other Filings (including without limitation in any frequency
coordination meeting). NSS will further ensure that any present or future
operations and use of or authorized by NSS or any affiliate of NSS or any
entity authorized by NSS with respect to any frequencies, orbital locations or
ITU filings at 125° West or, where they use frequencies in the same band as
those included in the NSS-6 Filing, less than two (2) degrees adjacent to
125° West, or, where they use frequencies in the same band as those included in
the NSS-10 Filing, less than six (6) degrees adjacent to 125° West, shall
require the prior written consent of SES, such consent not to be unreasonably
withheld or delayed or conditioned (provided, however, that nothing in this
provision shall be deemed to apply to any entity that acquires (by any means)
all or substantially all of the business and assets of NSS). For the avoidance
of doubt, the parties agree that any future operations and use of or authorized
by NSS or any affiliate of NSS or any entity authorized by NSS with respect to
any frequencies, orbital locations or ITU filings (other than the NSS Filings
which shall be addressed by this Agreement) two (2) or more degrees
adjacent to 125° West (in the case where they use frequencies in the same band
as those included in the NSS-6 Filing), or six (6) or more degrees
adjacent to 125° West (in the case where they use frequencies in the same band
as those included in the NSS-10 Filing) are not intended to be and shall not be
addressed by this Section 2(c)(vii), but shall be addressed by the parties
in accordance with the relevant international and national treaties, laws,
rules, and regulations then applicable.


 


3. NSS Representations
and Warranties and Undertakings. Subject to the provisions of Section 5
below, NSS represents and warrants that, at the date of this Agreement, NSS has
not brought into use any of the Ku-band frequency assignments pursuant to the
NSS Filings at 125° West or at an orbital position, (i) in the case of
those frequency assignments included in the NSS-6 Filing or within the same
band, within five (5) degrees or less adjacent to 125° West which are
co-frequency with those of any of the Other Filings, and (ii) in the case
of those frequency assignments included in the NSS-10 Filing or within the same
band, within ten (10) degrees or less adjacent to 125° West which are
co-frequency with those of any of the Other Filings, nor authorized any other
person or entity to use any of the NSS Filings, nor traded, assigned,
transferred, licensed, or in any way entered into any legally binding agreement
with any third party to do the


 


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same with respect to any of
the NSS Filings. Furthermore, NSS undertakes to SES that it shall not take any
of those actions described in the preceding sentence from the date of this
Agreement during the Exclusivity Period or, in the event that SES exercises the
Option and pays the consideration therefor in accordance with the terms of this
Agreement, thereafter.


 


4. Termination


 


(a) Termination Due
to Failure of Performance by NSS. In the event that SES exercises the
Option as described in Section l(b) and, (i) NSS does not comply
with its obligations in Section 2(a), and such unexcused failure of
compliance shall remain uncured for a period of (30) days following the
delivery of written notice from SES to NSS, or (ii) an authorization that
is required to be procured by NSS from the Dutch Government in accordance with
the provisions of Section 2(a) is not so procured following the
aforementioned notice and 30-day cure period, or (iii) there is a material
breach of any of the representations and warranties given by NSS in this
Agreement and such breach shall remain uncured following the aforementioned
notice and 30-day cure period, then, without prejudice to either party’s rights
and remedies, including without limitation in respect of an antecedent breach,
SES shall be entitled to terminate its applicable obligations under this
Agreement, which on such termination shall have no further force and effect;
provided, however, that the obligations in this Section 4 and in Sections
16, 17, 18 and 20 hereof shall survive any such termination. Furthermore, on
such termination, NSS shall refund to SES the Option Grant Fee and the Option
Exercise Fee in full, together with an interest charge of 8% p.a. accruing on a
daily basis from the date of payment by SES.


 


(b) Termination Due
to Failure of Performance by SES. In the event that, at any time prior to
payment by SES to NSS of the Option Exercise Fee (but at no time thereafter), SES
does not comply with its obligations in this Agreement, by taking actions or
failing to act in a manner so as to hinder, delay or undermine NSS’ efforts or
ability to obtain any authorization, make any required notification or
undertake any other action that may be required or desirable in order for
in each case NSS to perform its obligations pursuant to Section 2(a),
and such unexcused failure of compliance shall remain uncured for a period of
thirty (30) days following the delivery of written notice from NSS to SES, then
without prejudice to either party’s rights and remedies, including without
limitation in respect of an antecedent breach, NSS shall be entitled to terminate
its obligations under this Agreement which on such termination shall have no
further force and effect; provided, however, that the obligations in this Section 4
and in Sections 16, 17, 18 and 20 hereof shall survive any such termination.
Furthermore, on such termination, NSS shall be permitted to retain the Option
Grant Fee if such termination event occurs during the Exclusivity Period.
Nothing in this Section 4(b) is intended to limit any right or remedy
that NSS may have at law or in equity against SES in the event that,
following SES’ exercise of the Option, any uncured failure of compliance by SES
contributes to NSS’ inability to obtain a required authorization that would
otherwise entitle NSS to receive the Option Exercise Fee.


 


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5. Non-exercise of Option.
In the event that the Option is not exercised by SES prior to the expiration of
the Exclusivity Period, the Option shall lapse and this Agreement shall have no
further force and effect unless renewed and extended by mutual consent of the
parties; provided, however, that the obligations in Sections 16, 17, 18 and 20
hereof shall survive any such termination. The Option Grant Fee is
nonrefundable, notwithstanding SES’ failure to exercise the Option for any
reason, except as provided in Section 4.


 


6. Payment of Option
Grant Fee. Within ten (10) business days of the date of this Agreement,
SES shall pay to NSS by wire transfer the Option Grant Fee to the following account:


 


	
  Account Name:

  	
  New Skies Satellites BV

  
	
  Account Number

  	
  52.73.52.993

  
	
  Bank:

  	
  ABN AMRO Bank NV

  
	
  Address:

  	
  Gustav Mahlerlaan 10,

  
	
   

  	
  1000 EA Amsterdam

  
	
   

  	
  The Netherlands

  
	
  SWIFT:

  	
  ABNANL2A

  



 


In the event that SES
extends the Exclusivity Period pursuant to Section 1 of this Agreement,
then SES shall pay to NSS the total amount of the fees for such extension by no
later than 21 August 2005 or such later date as the parties may agree.


 


7. Payment of Option
Exercise Fee. Following exercise of the Option, SES shall pay to NSS by
wire transfer the sum of Nine Million United States Dollars (US$9,000,000) (the
“Option Exercise Fee”) as follows:


 


(a) in the event that
SES elects the Dutch Method as the SES Preferred Method of Proceeding, then no
later than ten (10) days following the delivery by NSS to SES of a valid
copy of the relevant authorization and other documents required to be executed
by NSS as specified in Section 2(a)(i), SES shall pay to NSS the Option
Exercise Fee; or


 


(b) in the event the
SES elects the non-Dutch Method as the SES Preferred Method of Proceeding, then
SES shall pay to NSS the Option Exercise Fee on the earlier of the following
dates: (i) the date that is ten (10) days after delivery of the
Coordination Letter by the Dutch Government to the relevant Administration
contemplated in Section 2(a)(ii)(A) hereof; or (ii) assuming the
circumstances contemplated in Section 2(a)(ii) (B) apply, the
date that is ten (10) days after delivery of the written notification by
the Dutch Government to the ITU contemplated in Section 2(a)(ii)(B) hereof.


 


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SES shall make payments of
the Option Exercise Fee to the following account:


 


	
  Account Name:

  	
  New Skies Satellites BV

  
	
  Account Number

  	
  52.73.52.993

  
	
  Bank:

  	
  ABN AMRO Bank NV

  
	
  Address:

  	
  Gustav Mahlerlaan 10,

  
	
   

  	
  1000 EA Amsterdam

  
	
   

  	
  The Netherlands

  
	
  SWIFT:

  	
  ABNANL2A

  



 


8. [Intentionally omitted]


 


9. NSS hereby represents and
warrants to SES on the date of this Agreement and which shall be deemed
repeated on the date of exercise of the Option and on each date an authorization
is duly delivered pursuant to Section 2 (in the case of the Dutch Method
being chosen) or on the date of the delivery of the Coordination Letter (in the
case of the non-Dutch Method being chosen) that:


 


(a) It has the right,
power and authority to enter into and perform its obligations under this
Agreement;


 


(b) The execution,
delivery and performance by NSS of this Agreement has been duly and validly
authorized, and no additional corporate authorization or consent is required in
connection with the execution, delivery and performance by NSS of this
Agreement, and this Agreement constitutes a valid and legally binding obligation
of NSS, enforceable in accordance with its terms;


 


(c) The fulfillment of
its obligations will not constitute a material violation of any existing
applicable laws of any governmental entity or contract to which it is subject;


 


(d) The statements
concerning NSS and the NSS Filings in the Whereas clauses above are true and
accurate;


 


(e) It has not granted
any rights or incurred any obligations to act or refrain from acting in
connection with 125° West or the NSS Filings;


 


(f) NSS possesses all
rights under the NSS Authorization, a true and complete copy of the NSS
Authorization has been shown to SES’ counsel subject to a nondisclosure
obligation and shall be made available to SES at SES’ written request, subject
to a commercially standard
confidentiality undertaking being executed by the parties, following SES’
exercise of the Option. There are no other material provisions of Dutch law or
regulation concerning the NSS Authorization and its use, including without
limitation any milestones for bringing in to use the NSS Filings, except as
provided in the NSS Authorization and the Radio Regulations of the ITU. NSS is
entitled to deal in the NSS Authorization with SES in the manner contemplated
in this Agreement. There are no adverse claims, third party rights, charges,
mortgages or encumbrances over the NSS Authorization that


 


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will be triggered by or in
any way adversely affect performance of the Parties’ respective obligations
under this Agreement, SES being entitled to acquire rights in accordance with
the terms of this Agreement free and clear of such claims, rights, charges, mortgages
or encumbrances. The NSS Authorization is currently valid and NSS’ management
does not know of any reason or ground (having made all reasonable inquiry) for
termination of the NSS Authorization. NSS has complied with all terms of the
NSS Authorization and has not committed nor permitted any uncured breach of any
provision of the NSS Authorization. NSS’ management does not know (having made
all reasonable inquiry) of any litigation or claim concerning the NSS
Authorization that is or will be reasonably likely to adversely affect
performance of the Parties’ respective rights and obligations under this
Agreement. There are no material fees, payments or penalties due in connection
with the NSS Authorization;
and


 


(g) A detailed and
accurate summary of the inter-satellite network frequency coordination position
of the NSS Filings under the Radio Regulations of the ITU has been shown to SES’
counsel subject to a nondisclosure obligation.


 


10. SES hereby represents
and warrants to NSS on the date of this Agreement and which shall be deemed
repeated on the date of exercise of the Option and on each date an authorization
is duly delivered pursuant to Section 2 (in the case of the Dutch Method being
chosen) or on the date of the delivery of the Coordination Letter (in the case
of the non-Dutch Method being chosen) that:


 


(a) It has the right,
power and authority to enter into and perform its obligations under this
Agreement;


 


(b) The execution,
delivery and performance by SES of this Agreement has been duly and validly
authorized, and no additional corporate authorization or consent is required in
connection with the execution, delivery and performance by SES of this
Agreement, and this Agreement constitutes a valid and legally binding
obligation of SES, enforceable in accordance with its terms; and


 


(c) The fulfillment of
its obligations will not constitute a material violation of any existing
applicable laws of any governmental entity or contract to which it is subject.


 


11. Without prejudice to
either party’s other rights and remedies, if either party fails to comply with
its obligations under this Agreement, then the other party shall be entitled to
the remedy of specific performance or other equitable relief against the
non-complying party, without the necessity of posting a bond, and without the
necessity of establishing the inadequacy of any remedy at law. Subject to the
limitations set forth in Section 17 below, if either party breaches its
obligations hereunder, then the non-breaching party shall also be entitled to
exercise all rights available to it under law or in equity.


 


12. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and undertakings,
both


 


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written and oral, with
respect to the subject matter hereof.


 


13. Neither party may assign
its rights or obligations under this Agreement without the prior written
consent of the other party; provided, however, that either party (i) may assign,
pledge and grant a security interest in its right, title and interest, in, to
and under this Agreement and its rights hereunder as collateral security for
any present or future indebtedness, and (ii) may assign its rights and
obligations without consent to any entity that acquires all or substantially
all of such party’s assets or otherwise succeeds to such party’s interests by
way of merger, acquisition or other strategic transaction, and (iii) may assign
its rights and obligations without consent to any entity that is an affiliate
of that party capable of exercising such rights and performing such
obligations.


 


14. This Agreement may not
be amended or modified except by an instrument in writing signed by each of the
parties hereto.


 


15. Failure or delay by any
party to this Agreement in exercising any right or remedy of that party under
this Agreement shall not operate as a waiver of such right or remedy, nor shall
any single or partial exercise of any right or remedy preclude any other or
future exercise of such right or remedy or the exercise of any other right or
remedy. Any waiver of a breach of, or a default under, any of the terms of this
Agreement shall not be deemed a waiver of any subsequent breach or default, and
shall in no way affect the other terms of this Agreement.


 


16. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF ENGLAND AND WALES,
AND SUCH LAWS SHALL APPLY TO ANY DISPUTES OR CONTROVERSIES ARISING HEREUNDER.
EACH PARTY HERETO AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN
RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR
CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN THE COURTS OF ENGLAND (THE “CHOSEN
COURT”) AND (I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
CHOSEN COURT, (II) WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR
PROCEEDING IN THE CHOSENCOURT, (III) WAIVES ANY OBJECTION THAT THE CHOSEN COURT
IS AN INCONVENIENT FORUM OR DOES NOT HAVE JURISDICTION OVER ANY PARTY HERETO,
AND (IV) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH ACTION OR
PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH SECTION 18
OF THIS AGREEMENT.


 


17. Limitation of Liability.
Notwithstanding anything else herein to the contrary, in no event will either
party be liable for any incidental, consequential or special damages or loss of
revenues, whether foreseeable or not, occasioned by any default by such party hereunder
or any other cause. In no event will either party be liable for any direct damages
in excess of US $9,500,000 (plus, as determined by any applicable court, applicable
interest, legal costs and attorneys fees) as a result of any default hereunder
or any other cause unless as a result of such party’s willful breach of its
obligations set forth


 


12

















 


herein.


 


18. Notices. All notices or
other communications hereunder shall be deemed to have been duly given and made
if in writing and if served by personal delivery upon the party for whom it is
intended, if delivered by registered or certified mail, return receipt
requested, or by a national courier service, or if sent by telecopier, provided
that the telecopy is promptly confirmed by telephone confirmation thereof, to
the person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such party:


 


To NSS:


 


New Skies Satellites B.V.


Rooseveltplantsoen 4


2517KR The Hague


The Netherlands


Attention:   General
Counsel


Facsimile No.: +31-70
306 4201


 


To SES:


 


SES Global Satellite Leasing
Limited


15-19 Athol Street,


Douglas,


Isle of Man IMI 1LB
Attention: Company Secretary


Facsimile No.: +44 1624 638333


 


19. If any term, provision,
covenant or condition of this Agreement, or the application thereof to any
party or circumstance, shall be held to be invalid or unenforceable (in whole
or in part) for any reason, the remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, provided that this Agreement
as so modified or as further modified by a court shall continue to express, without
material change, the original intentions of the parties as to the subject
matter of this Agreement and the deletion of such portion of this Agreement,
with such further modifications by a court, will not substantially impair the
respective benefits or expectations of the parties to this Agreement. If any
such modification or deletion would fail to express the original intentions of
the parties as to the subject matter of this Agreement, it is the parties’
intention that this Agreement be modified, or other actions be taken by a court
or other appropriate body, to reflect such intentions, or at a minimum to
restore the parties to the positions they were in prior to execution and
delivery of this Agreement.


 


20. Each of the parties
hereby agrees that, except as may be required to comply with the requirements
of all applicable laws or rules of a recognized stock exchange, no press release
or similar public announcement or communication shall be made or caused to be made
concerning the execution or performance of this Agreement or its contents
unless specifically approved in writing in advance by the other party hereto
(which approval


 


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shall not be unreasonably
withheld or delayed). In the event of disclosure required by law or rule of
a recognized stock exchange, disclosure may be permitted so long as prior
to any such disclosure the disclosing party provides the other party with the
greatest written notice permitted under the circumstances, so that the
disclosing party may seek a protective order or other appropriate remedy.
In any such event, the disclosing party will disclose only such information as
is legally required and will exercise reasonable efforts to obtain confidential
treatment for any information being disclosed.


 


21. This Agreement may be
executed in several counterparts, each of which shall be deemed an original,
and all such counterparts together shall constitute but one and the same
instrument.


 


22. The parties shall at
their own cost and expense promptly do or procure to be done all such further
acts and things and execute or procure the execution of all such other
documents as may from time to time be necessary for the purpose of giving
the full effect of the provisions of this Agreement.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first forth above.


 


 


	
  NEW SKIES SATELLITES B.V.

  	
  SES GLOBAL SATELLITE
  LEASING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel S. Goldberg

  	
   

  	
  /s/ Roman Bausch

  	
   

  
	
  By: Daniel S. Goldberg

  	
  By: Roman Bausch

  
	
  Title: CEO

  	
  Title: President &
  CEO

  
	
  Date: July 11, 2005

  	
  Date: July 11, 2005

  
				



 


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