exv4w35



 


Exhibit 4.35



	 	CONFIDENTIAL TREATMENT REQUESTED

        The asterisked (“**”) portions of this document have been

      omitted and filed separately with the Securities and

       Exchange Commission pursuant to a request for confidential
treatment.

      




EXECUTION COPY



 

AMENDMENT NO. 4 TO

  ASSET PURCHASE AGREEMENT 

     This Amendment No. 4 (this “Amendment”) to that certain Asset Purchase
Agreement, dated as of July 15, 2003, as amended prior to the date hereof (the
“Asset Purchase Agreement”), among Intelsat, Ltd., a Bermuda company
(“Parent”), Intelsat (Bermuda), Ltd., a Bermuda company (“Purchaser”), Loral
Space & Communications Corporation, a Delaware corporation and a debtor and
debtor in possession (“Loral Space”), Loral SpaceCom Corporation, a Delaware
corporation and a debtor and debtor in possession (“Loral
SpaceCom”), and Loral
Satellite, Inc., a Delaware corporation and a debtor and debtor in possession
(together with Loral Space and Loral SpaceCom, the “Sellers”), is entered into
as of March 5, 2004 among Parent, Purchaser and Sellers.


W I T N E S S E T H



     WHEREAS, the parties have previously entered into the Asset Purchase
Agreement, including Amendments No. 1, 2 and 3 thereto; and


     WHEREAS, subject to Section 18 hereof, the parties now wish to further
amend and modify the Asset Purchase Agreement on the terms and conditions set
forth herein.


     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:


     SECTION 1. Definitions. Capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Asset Purchase
Agreement.


     SECTION 2. Amendment to Section 2.5 of the Asset Purchase Agreement.


     (a)    Section 2.5(d) of the Asset Purchase Agreement is hereby amended by
deleting that section in its entirety and replacing it with the following:



		
	 	     "(d)(i) If, on or prior to the Closing Date,
Sellers, in compliance with Section 6.17 (and subject
to availability of capacity), shall have entered into
a New Lease that constitutes a Lease Agreement under
Section 6.17, and the Lease Agreement is a valid and
binding Contract (which is an Assumed Contract under
Section 6.17(d), all rights under which are legally
and validly assigned to Purchaser at Closing), then:
(A) if the New Lease is an



 






 





		
	 	Assumed Contract pursuant to Section 6.17(c), the
Base Price shall be increased by $100 million, or (B)
if the New Lease is an Assumed Contract pursuant to
Section 6.17(d), the Base Price shall be increased by
$50 million; provided that if the services offered
under the proposed New Lease may be used to provide
direct-to-home satellite services, the proposed New
Lease shall provide: (1) that such services will not
commence until Parent completes an initial public
offering in compliance with the Open-Market
Reorganization for the Betterment of International
Telecommunications Act and (2) the parties thereto
shall have no right to terminate the New Lease (in
whole or in part) prior to the completion of that
initial public offering.




		
	 	     (ii)    Sellers will cause SS/L to execute and
deliver at Closing amendments to the Purchased
Satellite Procurement Agreements eliminating all
obligations to make orbital incentive payments. On
the Closing Date, Purchaser shall pay $12,500,000 to
SS/L and the covenant of Sellers in Section 6.16
hereof and the closing condition in Section 9.1(r)
shall be deemed to have been performed.




		
	 	     (iii)    *******



     (b)  Section 2.5(j) of the Asset Purchase Agreement is hereby amended by
deleting that section in its entirety and replacing it with the following:



		
	 	     "(j)(i)    If there is an amount owed by Sellers to Purchaser
under Section 2.5(i) and Sellers have failed to make payment to
Purchaser of such amount on the date provided therein, Purchaser
may, in lieu of having a continuing claim against Sellers for such
unpaid amount, elect, by written notice to Sellers and SS/L, to
reduce the purchase price under the New Procurement Agreement by an
amount equal to such unpaid amount and SS/L shall have a claim only
against the Sellers (and not against Parent, Purchaser or any of
their Affiliates) with respect to such reductions.




		
	 	     (ii)        If the insurance proceeds received by Parent or its
Affiliates following the Closing with respect to the loss of
Telstar 4 are less than $141 million (before giving effect to
Purchaser’s obligation to reimburse T-4 Warranty Payments), the
purchase price payable under the New Procurement Agreement for the
85 Degrees Spacecraft (as defined in Annex I hereto) shall be
reduced by the amount of such shortfall and SS/L shall have a claim
only against the Sellers (and not against Parent, Purchaser or any
of their Affiliates) with respect to such reduction. The amount of
any such purchase price reduction shall be applied as a credit
against the milestone payments as they first become due under the
New Procurement Agreement. If the purchase price reduction exceeds
the unpaid amount of the purchase price payable under the New
Procurement Agreement, Sellers shall cause SS/L to pay such excess
amount to Intelsat LLC within ten



-2-






 





		
	 	(10) Business Days of its written demand. Sellers acknowledge
that, as of and from the Closing, no Seller shall be named as a
loss payee on the Telstar 4 insurance policies.




		
	 	     (iii)    Sellers acknowledge that there will be no upward
adjustment to Recurring Revenues or Backlog, and no downward
adjustment to the Revenue Threshold or the Backlog Threshold to
reflect lost Revenues or Backlog as a result of the loss of Telstar
4, and Sellers hereby waive any right to object to the calculation
of such Recurring Revenues or Backlog (under Section 2.5(f) or
otherwise, including, without limitation, in any proceeding before
the Bankruptcy Court or in any other proceeding before any
Governmental Authority or arbitrator) as a result of the loss of
Telstar 4.”



     SECTION 3. Amendment to Section 2.7(a)(v) of the Asset Purchase
Agreement. Section 2.7(a)(v) of the Asset Purchase Agreement is hereby amended
by deleting that section in its entirety and replacing it with the following:



		
	 	     "(v) A deposit of $50 million with respect to the New
Procurement Agreement (the “Deposit”) in immediately available
funds by wire transfer to the accounts designated, in writing, by
the Sellers not less than three (3) Business Days prior to the
Closing; provided that if Sellers are unable to deliver a valid,
perfected, first priority security interest in the Deposit
Collateral, as provided in the Deposit and Security Agreement, the
Deposit shall not be a condition to Closing and shall only be
required to be made when the required security interest in the
Deposit Collateral, together with all appropriate documentation, is
so delivered.”



     SECTION 4. Amendment to Section 2.9 of the Asset Purchase Agreement.
Section 2.9 of the Asset Purchase Agreement. Section 2.9 is hereby amended to
read in its entirety as follows:



		
	 	     “Section 2.9. Title to Telstar 4.
Notwithstanding any other provision of this Agreement,
Purchaser will not acquire ownership of or title to
Telstar 4, but will, unless for any reason there shall
have been a decrease in the Base Price pursuant to
Section 2.5(b)(iii) with respect to the insurance
proceeds payable with respect to the Total Loss (or
lesser loss) of Telstar 4, be entitled to receipt and
ownership of such proceeds, to the extent such
proceeds are received on or after the Closing, and
will reimburse the Sellers from such proceeds upon
demand and presentation of appropriate documentation
for payments they make to parties under Contracts With
Warranty with respect to the insured loss (“T-4
Warranty Payments”). For avoidance of doubt, if such
proceeds are received prior to Closing and so reduce
the Base Price, such proceeds shall not constitute
Purchased Assets hereunder.



-3-






 






		
	 	     Sellers agree to cooperate with Parent and
Purchaser in the prosecution of all claims for
insurance arising from the loss of Telstar 4. This
cooperation shall include, without limitation and at
no additional cost to Parent and Purchaser, the
provision of technical assistance and support as
requested by Purchaser in connection with: (i)
interactions with Willis Inspace, the insurance
underwriters and Lockheed Martin; (ii) provision of
reports and notifications required in the insurance
policies being assigned to Purchaser at the Closing
such as state of health reports, notices of
occurrence, and proofs of loss; (iii) briefings to
insurance underwriters, which shall include assistance
in responding to questions from the insurance
underwriters; and (iv) at Purchaser’s request,
performance by Sellers of all obligations of the named
insured relating to salvage requirements under Section
6 of the Telstar 4 insurance contract.




		
	 	     Each Seller, jointly and severally, represents
and warrants to Parent and Purchaser that to their
Knowledge after due inquiry, as of the date hereof, it
has not received any oral or written notice that any
Person will assert or is contemplating asserting any
claims for T-4 Warranty Payments, except as noted on
Schedule 2.9 hereto.”



     SECTION 5. Amendment to Article 2 of the Asset Purchase Agreement.
Article of the Asset Purchase Agreement is hereby amended by adding a new
Section 2.10 as follows:


          “Section 2.10 Replacement ABC Promissory Notes. Purchaser agrees to enter
into an agreement with ABC to indemnify ABC against any claims or liabilities
to which ABC may be subjected by reason of or in connection with the issuance
to SpaceCom of new replacement promissory notes for the five separate
promissory notes issued to Loral SpaceCom that it has advised Purchaser and ABC
have been lost, misplaced or destroyed; provided, however, that Purchaser’s
obligation to indemnify ABC shall be conditioned upon the Closing and the
execution by SpaceCom of a similar indemnity agreement with ABC. If ABC seeks
indemnity from Purchaser pursuant to the foregoing, Purchaser shall so notify
Sellers and allow them the opportunity to assume the defense thereof. Sellers
agree, jointly and severally, to reimburse Purchaser within five (5) Business
Days of Purchaser’s written demand, for any and all costs and expenses it may
incur in connection with fulfilling its obligation to indemnify ABC. If
Sellers fail to so reimburse Purchaser within such five (5) Business Day
period, Sellers’ payment obligation shall accrue interest at the rate of eight
percent (8%) per annum until paid in full.


     SECTION
6. Amendment to Article VI of the Asset Purchase Agreement.
Article VI of the Asset Purchase Agreement is hereby amended by adding a new
Section 6.18 as follows:


          “Section 6.18 Sale of Business.


-4-






 



		
	 	     (a)    Sellers hereby agree to cause the LSNS Agreement to be
amended prior to Closing to require LSNS to cause any Person to
whom all or substantially all of LSNS’s assets (whether now owned
or hereafter acquired) are sold, leased or otherwise transferred to
assume, in writing, all of LSNS’s obligations under the LSNS
Agreement, on terms reasonably acceptable to Intelsat USA Sales
Corporation.




		
	 	     (b)    The Parties agree that the New Procurement Agreement shall
include a provision requiring SS/L to cause any Person to whom all
or substantially all of SS/L’s assets (whether now owned or
hereafter acquired) are sold, leased or otherwise transferred to
assume, in writing, all of SS/L’s obligations under the New
Procurement Agreement, on terms reasonably acceptable to Intelsat
LLC.”



     SECTION 7. Waiver of Sections 9.1(h) and 9.1(k)(i) of the Asset Purchase
Agreement. Parent and Purchaser hereby irrevocably waive the conditions to
Closing set forth in Sections 9.1(h) and 9.1(k)(i) of the Asset Purchase
Agreement.


     SECTION 8. Waiver of Section 9.1(j) of the Asset Purchase Agreement.
Parent and Purchaser hereby irrevocably waive the condition to Closing set
forth in the final sentence of Section 9.1(j), in consideration for which the
Base Price shall be reduced as provided in Section 2 of this Amendment.


     SECTION 9. Amendment to Section 9.1(o) of the Asset Purchase Agreement.
Section 9.1(o) of the Asset Purchase Agreement is hereby amended by deleting
that section in its entirety and replacing it with the following:



		
	 	     "(o)    Backlog as set forth in the Final Report (which the
Parties agree shall be the Monthly Report as of January 31, 2004 if
the Closing occurs on or before March 31, 2004 or such later date
as may be extended by Purchaser in accordance with the last
sentence of this Section 9.1(o)) shall not be less than the amount
set forth in Schedule 9.1(o). Parent and Purchaser acknowledge
that the Final Report shall include the Backlog under (i) that
certain Amended and Restated Agreement, dated as of February 25,
2004 (the “Starband Agreement”), between Loral SpaceCom and
Starband Communications Inc., and (ii) that certain Agreement,
entered into on February 24, 2004 and effective as of January 1,
2004 (the “LSNS Agreement”), between Loral SpaceCom and Loral
Skynet Network Services, Inc. (“LSNS”) fully as though such
contracts were in full force and effect on January 31, 2004.
Parent and Purchaser agree that the Starband Agreement and the LSNS
Agreement shall be Assumed Contracts. Sellers agree to use Best
Reasonable Efforts to cause Grant Thornton to deliver the Monthly
Report as of January 31, 2004 to Parent and Purchaser as soon as
practicable. The Parties agree that Purchaser may extend the
Closing Date until the date which is five (5) Business Days
following its receipt of the Final Report.”



     SECTION 10. Amendment to Annex H to the Asset Purchase Agreement. Section
4 of Annex H is hereby amended by adding the following at the end thereof:


-5-






 


     “Section 1.1.d of the Statement of Work to the Telstar 8
Procurement Agreement shall be amended by deleting that section in
its

     entirety and replacing it with the following:



		
	 	Intelsat will arrange for access to its Clarksburg TT&C
facilities, equipment and support personnel for Bus, C-band,
Ku-band and Ka-band IOT. In addition, Intelsat shall arrange
for data lines for transmitting baseband spacecraft telemetry
data between Intelsat’s Clarksburg facility and SS/L’s Palo
Alto MCC. Intelsat will arrange for one CONUS TT&C RF site
at Clarksburg for use by the Palo Alto MCC. To the extent
SS/L is not already contractually committed to purchase such
services from another vendor, SS/L agrees to obtain transfer
orbit services for Telstar 8 (i.e., TT&C ground station and
mission operations support) from Intelsat Global Service
Corporation under the parties’ existing Master Ordering
Agreement.”



     SECTION 11. Amendment to Annex I to the Asset Purchase Agreement.


     (a)    Section 1 of Annex I to the Asset Purchase Agreement is hereby amended
by deleting the third sentence of that section and replacing it with the
following:




     “Notwithstanding the foregoing, Intelsat shall provide
SS/L with an authorization to proceed with the
Contract no later than

     June 30, 2004.”


     (b)    Section 2 of Annex I to the Asset Purchase Agreement is hereby amended
by deleting the reference to “One Hundred Million Dollars ($100,000,000)” in
the fourth sentence of that section and replacing it with “Fifty Million
Dollars ($50,000,000).”


     SECTION 12. Amendment to Annex J to the Asset Purchase Agreement. Annex J
to the Asset Purchase Agreement is hereby amended as follows:


     (a)    Annex J is amended by adding the following at the end thereof:



		
	 	“The Parties agree that the Pledge and Security Agreement to be
entered into at Closing in connection with the New Procurement
Agreement shall require Sellers, as a condition to Purchaser’s
obligation to fund the Deposit, to obtain an endorsement in form
and substance satisfactory to Parent designating Intelsat LLC as
loss payee under the insurance policies relating to the Satellite
Collateral (as defined in Annex J to the Asset Purchase Agreement)
and specifying that the first $50 million of insurance proceeds
thereunder shall be paid into a cash collateral account under the
exclusive control of Intelsat LLC.”



     (b)    Attachment A to Annex J is amended by adding the
following at the end thereof:


		
	 	“7.    Pledge of stock of Loral Holdings Ltd.”




-6-






 


     SECTION 13. Certain Additional Representations and Warranties of Sellers.
Each Seller, jointly and severally, represents and warrants to Parent and
Purchaser that:



		
	 	     (a)    Subject to Section 17, the execution, delivery and performance
by each Seller of this Amendment has been duly and validly authorized,
and no additional corporate authorization or consent is required in
connection with the execution, delivery and performance by such Seller of
this Amendment; and




		
	 	     (b)    Subject to Section 17, this Amendment constitutes a valid and
legally binding obligation of each Seller, enforceable in accordance with
its terms.



     SECTION 14. Certain Additional Representations and Warranties of Parent
and Purchaser. Parent and Purchaser, jointly and severally, represent and
warrant to each Seller that:



		
	 	     (a)    Subject to Section 17, the execution, delivery and performance
by each of Parent and Purchaser of this Amendment has been duly and
validly authorized, and no additional corporate authorization or consent
is required in connection with the execution, delivery and performance by
Parent or Purchaser of this Amendment; and




		
	 	     (b)    Subject to Section 17, this Amendment constitutes a valid and
legally binding obligation of each of Parent and Purchaser, enforceable
in accordance with its terms



     SECTION 15. No Other Amendments; Continuing Effect of the Asset Purchase
Agreement. This Amendment shall not constitute an amendment or waiver of any
other provision of the Asset Purchase Agreement, the TT&C Transition Services
Agreement or the LSNS Agreement not expressly referred to herein (including,
for the avoidance of doubt and without limitation, such provisions of Sections
2.5, 2.7, 2.9, 6.2 and 9.1 of the Asset Purchase Agreement and Annexes H and I
to the Asset Purchase Agreement, as are not expressly referred to herein). The
provisions of Section 2.5(j) as amended in accordance with Section 2 of this
Amendment shall not be exclusive of any other rights or remedies of Parent and
Purchaser under the Asset Purchase Agreement or provided by Law. Except as
expressly provided hereby, the Asset Purchase Agreement shall continue in full
force and effect in accordance with the provisions thereof and the Asset
Purchase Agreement is in all respects hereby ratified, confirmed and preserved.
This Amendment and all of its provisions shall be deemed a part of the Asset
Purchase Agreement in the manner and to the extent herein provided.


     SECTION 16. Incorporation of Article XII of the Asset Purchase Agreement.
Article XII of the Asset Purchase Agreement is incorporated herein by
reference as if set forth fully in this amendment.


     SECTION 17. Effective Date. The Parties acknowledge that this Amendment
is conditioned upon and shall become effective only upon the later of (a) the
date on which the Bankruptcy Court approves the execution, delivery and
performance of this Amendment (the “Bankruptcy Court Approval Date”), and (b)
the date on which, under the Credit Agreement, dated as of December 17, 2003,
by and among Parent, the lenders party thereto and Citicorp North America,
Inc., as Administrative Agent (the “Credit Agreement”), the Required Lenders


-7-






 


(as such term is defined in the Credit Agreement) consent to the terms of
this Amendment. The Parties agree to use Best Reasonable Efforts to obtain
such approvals as promptly as practicable. If the Parties fail to obtain such
approvals by the earlier of the Bankruptcy Court Approval Date or April 12,
2004, either Sellers, on the one hand, or Parent and Purchaser, on the other
hand, may terminate this Amendment upon written notice to the other Parties.


[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]


-8-






 





     IN WITNESS THEREOF, the parties hereto have executed or caused this
Amendment to be executed as of the date first above written.




	 	 	 
	 	 	
LORAL SPACE & COMMUNICATIONS

        CORPORATION,

        as debtor and debtor in possession




	 	 	 	 
	 	 	By:	  /s/  Eric Zahler
	 	 	 	

	 	 	 	Name: Eric Zahler
	 	 	 	Title: Chief Operating Officer



	 	 	 
	 	 	
LORAL SPACECOM CORPORATION,

         as debtor and debtor in possession



	 	 	 	 
	 	 	By:	  /s/  Eric Zahler
	 	 	 	

	 	 	 	Name: Eric Zahler
	 	 	 	Title: Chief Operating Officer




	 	 	 
	 
	 	 	
LORAL SATELLITE, INC.,

         as debtor and debtor in possession


	 	 	 	 
	 	 	By:	  /s/  Eric Zahler
	 	 	 	

	 	 	 	Name: Eric Zahler
	 	 	 	Title: Chief Operating Officer





	 	 	 
	 
	 	 	
INTELSAT, LTD.,



	 	 	 	 
	 	 	By:	  /s/  Conny Kullman
	 	 	 	

	 	 	 	Name: Conny Kullman
	 	 	 	Title: Chief
Executive Officer




	 	 	 
	 
	 	 	
INTELSAT (BERMUDA), LTD.,



	 	 	 	 
	 	 	By:	  /s/  Ramu Potarazu
	 	 	 	

	 	 	 	Name: Ramu Potarazu
	 	 	 	Title: President





-9-






 





Schedule 2.5(d)(iii) and Schedule 2.9 have been omitted pursuant to Rule 601(2)
of Regulation S-K to the U.S. Securities Act of 1933, as amended. The Company
agrees to furnish supplementally such schedules to the Securities and Exchange
Commission upon request.



-10-