Exhibit 10.1


 




 





Dated 5 June 2009


 


COFACE FACILITY AGREEMENT


 


between


 


GLOBALSTAR, INC.

as the
Borrower,


 


BNP PARIBAS


SOCIÉTÉ GÉNÉRALE


NATIXIS

CALYON


and


CRÉDIT INDUSTRIEL ET
COMMERCIAL 

as the
Mandated Lead Arrangers,


 


BNP PARIBAS

as the
Security Agent

and the COFACE Agent


 


and


 


THE BANKS AND FINANCIAL
INSTITUTIONS

listed in Schedule 1

as the Original Lenders




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
  3

  
	
   

  	
   

  	
   

  
	
  2.

  	
  THE FACILITIES

  	
  48

  
	
   

  	
   

  	
   

  
	
  3.

  	
  PURPOSE

  	
  49

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONDITIONS OF UTILISATION

  	
  51

  
	
   

  	
   

  	
   

  
	
  5.

  	
  UTILISATION

  	
  53

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPAYMENT

  	
  56

  
	
   

  	
   

  	
   

  
	
  7.

  	
  PREPAYMENT AND CANCELLATION

  	
  57

  
	
   

  	
   

  	
   

  
	
  8.

  	
  INTEREST

  	
  65

  
	
   

  	
   

  	
   

  
	
  9.

  	
  INTEREST PERIODS

  	
  66

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CHANGES TO THE CALCULATION OF INTEREST

  	
  67

  
	
   

  	
   

  	
   

  
	
  11.

  	
  FEES

  	
  68

  
	
   

  	
   

  	
   

  
	
  12.

  	
  COFACE INSURANCE PREMIA

  	
  69

  
	
   

  	
   

  	
   

  
	
  13.

  	
  TAX GROSS-UP AND INDEMNITIES

  	
  71

  
	
   

  	
   

  	
   

  
	
  14.

  	
  INCREASED COSTS

  	
  74

  
	
   

  	
   

  	
   

  
	
  15.

  	
  OTHER INDEMNITIES

  	
  75

  
	
   

  	
   

  	
   

  
	
  16.

  	
  MITIGATION BY THE LENDERS

  	
  77

  
	
   

  	
   

  	
   

  
	
  17.

  	
  COSTS AND EXPENSES

  	
  77

  
	
   

  	
   

  	
   

  
	
  18.

  	
  REPRESENTATIONS

  	
  78

  
	
   

  	
   

  	
   

  
	
  19.

  	
  INFORMATION UNDERTAKINGS

  	
  91

  
	
   

  	
   

  	
   

  
	
  20.

  	
  FINANCIAL COVENANTS

  	
  100

  
	
   

  	
   

  	
   

  
	
  21.

  	
  POSITIVE UNDERTAKINGS

  	
  104

  
	
   

  	
   

  	
   

  
	
  22.

  	
  NEGATIVE UNDERTAKINGS

  	
  116

  
	
   

  	
   

  	
   

  
	
  23.

  	
  EVENTS OF DEFAULT

  	
  128

  
	
   

  	
   

  	
   

  
	
  24.

  	
  REMEDIES UPON AN EVENT OF DEFAULT

  	
  135

  
	
   

  	
   

  	
   

  
	
  25.

  	
  SECURITY

  	
  135

  



 


i

















 


	
  26.

  	
  CHANGES TO THE LENDERS

  	
  135

  
	
   

  	
   

  	
   

  
	
  27.

  	
  CHANGES TO THE BORROWER

  	
  140

  
	
   

  	
   

  	
   

  
	
  28.

  	
  ROLE OF THE COFACE AGENT, THE SECURITY AGENT AND THE
  MANDATED LEAD ARRANGERS

  	
  140

  
	
   

  	
   

  	
   

  
	
  29.

  	
  CONDUCT OF BUSINESS BY THE FINANCE PARTIES

  	
  148

  
	
   

  	
   

  	
   

  
	
  30.

  	
  SHARING AMONG THE FINANCE PARTIES

  	
  148

  
	
   

  	
   

  	
   

  
	
  31.

  	
  PAYMENT MECHANICS

  	
  150

  
	
   

  	
   

  	
   

  
	
  32.

  	
  SET-OFF

  	
  154

  
	
   

  	
   

  	
   

  
	
  33.

  	
  NOTICES

  	
  154

  
	
   

  	
   

  	
   

  
	
  34.

  	
  CALCULATIONS AND CERTIFICATES

  	
  156

  
	
   

  	
   

  	
   

  
	
  35.

  	
  PARTIAL INVALIDITY

  	
  156

  
	
   

  	
   

  	
   

  
	
  36.

  	
  REMEDIES AND WAIVERS

  	
  156

  
	
   

  	
   

  	
   

  
	
  37.

  	
  AMENDMENTS AND WAIVERS

  	
  157

  
	
   

  	
   

  	
   

  
	
  38.

  	
  COUNTERPARTS

  	
  158

  
	
   

  	
   

  	
   

  
	
  39.

  	
  GOVERNING LAW

  	
  158

  
	
   

  	
   

  	
   

  
	
  40.

  	
  ENFORCEMENT

  	
  158

  



 


ii

















 


THIS
AGREEMENT (the “Agreement”)  is dated 5 June 2009 and made


 


BETWEEN:


 


(1)                                 GLOBALSTAR,
INC.,
a corporation duly organised and validly existing under the laws of the State
of Delaware, with its principal office located at 461 South Milpitas
Blvd., Milpitas, CA 95035, United States of America (the “Borrower”);


 


(2)                                 BNP
PARIBAS,
a société anonyme with a share capital of
two billion four hundred sixty five million five hundred and twelve thousand
seven hundred and fifty eight Euros (€2,465,512,758) organised and existing
under the laws of the Republic of France, whose registered office is at
16 boulevard des Italiens, 75009 Paris, France registered under
number 662 042 449 at the Commercial Registry of Paris, acting
in its capacity as facility agent and Chef de File
for and on behalf of the Finance Parties (the “COFACE Agent”);


 


(3)                                 BNP
PARIBAS,
SOCIETE GENERALE, NATIXIS, CALYON and CRÉDIT INDUSTRIEL ET COMMERCIAL
each acting in its capacity as a mandated lead arranger (the “Mandated Lead  Arrangers”);


 


(4)                                 BNP
PARIBAS,
a société anonyme with a share capital of
two billion four hundred sixty five million five hundred and twelve thousand
seven hundred and fifty eight Euros (€2,465,512,758) organised and existing
under the laws of the Republic of France, whose registered office is at
16 boulevard des Italiens, 75009 Paris, France registered under
number 662 042 449 at the Commercial Registry of Paris, acting
in its capacity as the security agent (the “Security
Agent”); and


 


(5)                                 THE
FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and Commitments) as lenders (the “Original
Lenders”).


 


1.                                      DEFINITIONS AND INTERPRETATION


 


1.1                                Definitions


 


In this
Agreement:


 


“Acceptable Bank” means:


 


(a)                                  a bank or financial institution which has a
rating for its long-term unsecured and non credit-enhanced debt obligations of
AA- or higher by S&P or Fitch Ratings Ltd or Aa2 or higher by Moody’s or a
comparable rating from an internationally recognised credit rating agency;


 


(b)                                 Union Bank of California, provided that, it has a rating for its long-term unsecured
and non credit-enhanced debt obligations of A or higher by S&P or A+ by
Fitch Ratings Ltd or a comparable rating from an internationally recognised
credit rating agency; or


 


(c)                                  any other bank or financial institution
approved by the COFACE Agent.


 


“Acceptable Intercreditor Agreement” means an intercreditor
agreement in form and substance satisfactory to the COFACE Agent to be entered
into by the Borrower 


 


3

















 


or any
Subsidiary (as the case may be), the COFACE Agent and the relevant provider of
Subordinated Indebtedness.  Such
Acceptable Intercreditor Agreement shall include, without limitation, the
following provisions, whereby the relevant Subordinated Indebtedness provider
shall agree not to:


 


(a)                                  seek direct or indirect recovery, payment
or repayment of, nor permit direct or indirect payment or repayment of any of
the Subordinated Indebtedness or other amounts payable by the Borrower or any
Subsidiary (as the case may be) in respect thereof or of any other Subordinated
Indebtedness of the Borrower or any Subsidiary (as the case may be) other than
following satisfaction of the conditions to the making of Shareholder Distributions
in accordance with Clause 22.6 (Limitations on Dividends
and Distributions);


 


(b)                                 demand, sue for or accept from the Borrower
or any Subsidiary (as the case may be) any payment in respect of the
Subordinated Indebtedness or take any other action to enforce its rights or to
exercise any remedies in respect of any Subordinated Indebtedness (whether upon
the occurrence or during the occurrence of an event of default (howsoever
described) or otherwise) unless requested to do so by the COFACE Agent;


 


(c)                                  file or join in any petition to commence
any winding-up proceedings or an order seeking reorganisation or liquidation of
the Borrower or any Subsidiary (as the case may be), or take any other action
for the winding-up, dissolution or administration of the Borrower or any
Subsidiary (as the case may be) or take, or agree to, any other action which
could or might lead to the bankruptcy, insolvency or similar process of the
Borrower or any Subsidiary (as the case may be) unless requested to do so by
the COFACE Agent; and/or


 


(d)                                 claim, rank or prove as a creditor of the
Borrower or any Subsidiary (as the case may be) in competition with any Finance
Party.


 


“Account Control Agreement”
means each account control agreement substantially in the form agreed between
the Borrower and the Security Agent on the date of this Agreement (or as
otherwise satisfactory to the Security Agent) between a Deposit Account Bank
(as such term is defined in each Account Control Agreement), the Borrower and
the Security Agent.


 


“Accounts Agreement”
means the accounts agreement dated on or about the date of this Agreement and
made between the Borrower, the COFACE Agent, the Offshore Account Bank, Thermo
and the Security Agent.


 


“Additional Cost Rate”
has the meaning given to it in Schedule 4
(Mandatory Cost Formula).


 


4

















 


“Adjusted Consolidated EBITDA” means, for any period, Consolidated
EBITDA for such period provided that,
for the purpose of calculating the Consolidated Net Income component of
Consolidated EBITDA, any cash revenue received in that period but not
recognised under GAAP shall be included, plus (in the
case of paragraphs (a), (b) and (c) only, to the extent deducted
in the calculation of Consolidated EBITDA (without double-counting)):


 


(a)                                  non-cash stock compensation expenses;


 


(b)                                 non-cash asset impairment charges;


 


(c)                                  one time non-cash non-recurring expenses;
and


 


(d)                                 non-capitalised cash payments, if any, to
second generation ground segment vendors made from earnings counted during the
relevant period,


 


but excluding the proceeds of any Equity
Issuance or any Subordinated Indebtedness.


 


“Adjusted Consolidated EBITDA Reconciliation” means, for any
period, a reconciliation statement prepared by the Borrower in a form
reasonably acceptable to the COFACE Agent showing a reconciliation of:


 


(a)                                  cash revenue received in that period but
not recognised under GAAP, as determined in accordance with the definition of
Adjusted Consolidated EBITDA; to


 


(b)                                 revenues recognised for such period, as
determined in accordance with GAAP.


 


“Advance Payment” means an advance payment:


 


(a)                                  in the case of the Launch Services
Contract, of five per cent.  (5%) of the total Contract Price payable by the Borrower
pursuant to the Launch Services Contract; and


 


(b)                                 in the case of the Satellite Construction
Contract, of fifteen per cent.  (15%) of the total Contract Price payable by the Borrower
pursuant to the Satellite Construction Contract.


 


“Affiliate”
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company.


 


“Applicable Law”
means all applicable provisions of constitutions, laws, statutes, ordinances,
rules, treaties, regulations, permits, licences, approvals, interpretation and
orders of courts or Governmental Authorities and all orders and decrees of all
courts and arbitrators.


 


“Applicable Margin” means in respect of each
Facility:


 


(a)                                  for any Interest Period commencing prior to
15 December 2012, two point zero seven per cent.  (2.07%)
per annum;


 


5

















 


(b)                                 for any Interest Period commencing from
15 December 2012 until 14 December 2017, two point twenty
five per cent.  (2.25%) per annum; and


 


(c)                                  for any Interest Period commencing
thereafter, two point forty per cent.  (2.40%) per annum.


 


“Asset Disposition”
means the disposition of any or all assets (including the Capital Stock of a
Subsidiary or any ownership interest in a joint venture) of any Obligor or any
Subsidiary thereof whether by sale, lease, transfer or otherwise.  The term “Asset Disposition”
shall not include any Equity Issuance or any Debt Issuance.


 


“Attributable Indebtedness” means, on any date:


 


(a)                                  in respect of any Capital Lease of any
person, the capitalised amount thereof that would appear on a balance sheet of
such person prepared as of such date in accordance with GAAP; and


 


(b)                                 in respect of any Synthetic Lease, the
capitalised amount or principal amount of the remaining lease payments under
the relevant lease that would appear on a balance sheet of such person prepared
as of such date in accordance with GAAP if such lease were accounted for as a
Capital Lease.


 


“Authorisation”
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration (including all Governmental Approvals).


 


“Authorised Signatory”
means, with respect to the Supplier and the Launch Services Provider, a person
authorised to sign any document on its behalf to be delivered pursuant to this
Agreement.


 


“Availability Period” means the period from and including the
date of this Agreement to and including the date that is the earlier of:


 


(a)                                  seven (7) Months after the date of the
last Launch; or


 


(b)                                 15 November 2011.


 


“Available Commitment” means, in relation to a Facility, a
Lender’s Commitment under that Facility minus:


 


(a)                                  the amount of its participation in any
outstanding Loans under that Facility; and


 


(b)                                 in relation to any proposed Utilisation,
the amount of its participation in any Loans that are due to be made under that
Facility on or before the proposed Utilisation Date.


 


“Available Facility”
means, in relation to a Facility, the aggregate for the time being of each
Lender’s Available Commitment in respect of that Facility.


 


“Borrower Contingent Equity Account” has the
meaning given to such term in the Accounts Agreement.


 


6

















 


“Borrower Pledge of Bank Accounts” means the French law “Convention de Nantissement de Comptes Bancaires”
substantially in the form agreed between the Borrower and the Security Agent on
the date of this Agreement (or as otherwise satisfactory to the Security Agent)
between the Borrower, the Offshore Account Bank and the Security Agent.


 


“Break Costs” means the amount (if any) by which:


 


(a)                                  the interest which a Lender should have
received for the period from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period;


 


exceeds:


 


(b)                                 the amount which that Lender would be able
to obtain by placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the London interbank market
for a period starting on the Business Day following receipt or recovery and ending
on the last day of the current Interest Period.


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks are open for
general business in London, Paris and New York City.


 


“Canadian Dollars”
means the lawful currency for the time being of Canada.


 


“Capital Assets” means, with respect to the Borrower and its
Subsidiaries:


 


(a)                                  any asset that should, in accordance with
GAAP, be classified and accounted for as a capital asset on a Consolidated
balance sheet of the Borrower and its Subsidiaries; and


 


(b)                                 non-capitalised cash payments attributable
to any second generation Satellite Launch and ground segment vendors.


 


“Capital Expenditure
Account” has the meaning given to such term in the Accounts
Agreement.


 


“Capital Expenditures”
means with respect to the Borrower and its Subsidiaries for any period, the
aggregate cost of all Capital Assets acquired by the Borrower and its
Subsidiaries during such period, as determined in accordance with GAAP.


 


“Capital Lease”
means any lease of any property by the Borrower or any of its Subsidiaries, as
lessee, that should, in accordance with GAAP, be classified and accounted for
as a capital lease on a Consolidated balance sheet of the Borrower and its
Subsidiaries.


 


“Capital Stock” means:


 


(a)                                  in the case of a corporation, capital
stock;


 


7

















 


(b)                                 in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock;


 


(c)                                  in the case of a partnership, partnership
interests (whether general or limited);


 


(d)                                 in the case of a limited liability company,
membership interests; and


 


(e)                                  any other interest or participation that
confers on a person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing person.


 


“Cash” means, at any time, cash denominated
in Dollars and the Dollar equivalent of Euros and Canadian Dollars, in hand or
at bank and (in the latter case) credited to an account in the name of an
Obligor with an Acceptable Bank and to which an Obligor is alone (or together
with other Obligors) beneficially entitled and for so long as:


 


(a)                                  that cash is repayable on demand;


 


(b)                                 repayment of that cash is not contingent on
the prior discharge of any other indebtedness of any member of the Group or of
any other person whatsoever or on the satisfaction of any other condition;


 


(c)                                  there is no Lien over that cash except for
Liens created pursuant to the Security Documents or any Permitted Lien
constituted by a netting or set-off arrangement entered into by members of the
Group in the ordinary course of their banking arrangements; and


 


(d)                                 the cash is freely and immediately
available to be applied in repayment or prepayment of the Facilities.


 


“Cash Contribution Agreements”  means each cash contribution agreement
made between:


 


(a)                                  the Launch Services Provider and Thermo;
and


 


(b)                                 Hughes and Thermo,


 


and, in each case, entered into prior to
Financial Close on terms and conditions satisfactory to the COFACE Agent.


 


“Cash Equivalent Investments” means at any time:


 


(a)                                  certificates of deposit maturing within
one (1) year after the relevant date of calculation and issued by an
Acceptable Bank;


 


(b)                                 any investment in marketable debt obligations
issued or guaranteed by the government of the United States of America,
the United Kingdom, any member state of the European Economic Area or any
Participating Member State or by an instrumentality or agency of any of them
having an equivalent credit rating, maturing within one (1) year after the
relevant date of calculation and not convertible or exchangeable to any other
security;


 


8
















 


(c)                                  commercial paper not
convertible or exchangeable to any other security:


 


(i)                                     for which a recognised trading market
exists;


 


(ii)                                  issued by an issuer incorporated in the
United States of America, the United Kingdom, any member state of the
European Economic Area or any Participating Member State;


 


(iii)                               which matures within one (1) year
after the relevant date of calculation; and


 


(iv)                              which has a credit rating of either A-1 or
higher by S&P or F1 or higher by Fitch Ratings Ltd or P-1 or higher by
Moody’s, or, if no rating is available in respect of the commercial paper, the
issuer of which has, in respect of its long-term unsecured and non-credit
enhanced debt obligations, an equivalent rating;


 


(d)                                 any investment in money market
funds which:


 


(i)                                     have a credit rating of either A-1 or
higher by S&P or F1 or higher by Fitch Ratings Ltd or P-1 or higher by
Moody’s;


 


(ii)                                  invest substantially all their assets in
securities of the types described in paragraphs (a) to (c) above;
and


 


(iii)                               can be turned into cash on not more than
thirty (30) days’ notice; or


 


(e)                                  any other debt or marketable security
approved by the Majority Lenders,


 


in each case, denominated in Dollars and
the Dollar equivalent of Euros and Canadian Dollars, and to which any Obligor
is alone (or together with other Obligors) beneficially entitled at that time
and which is not issued or guaranteed by any member of the Group or subject to
any Lien (other than a Lien arising under the Security Documents).


 


“CNRA Required Balance”
has the meaning given to such term in the Accounts Agreement.


 


“Code” means the
US Internal Revenue Code of 1986, and the rules and regulations
thereunder, each as amended or modified from time to time.


 


“COFACE” means La  Compagnie
Française d’Assurance pour le Commerce Extérieur a French société
anonyme with
a share capital of one hundred and seven million sixty five thousand eight
hundred and one Euros and sixty six cents (€107,065,801.66) whose registered
office is at La Défense, 10-12 Cours
Michelet, 92800, Puteaux, France and registered at the Registre du
Commerce et des Societés of Nanterre with registered
number 552 069 791.


 


“COFACE Insurance Policy”
means each credit insurance policy in respect of this Agreement to be issued by
COFACE for the benefit of the Lenders in respect of each Facility and as
approved by the COFACE Agent (on behalf of the Lenders) pursuant 


 


9

















 


to articles L.432-1 to L.432-4 of the
French Code des Assurances and signed by the COFACE Agent and the
Original Lenders.


 


“COFACE Insurance Premia”
means the premia due to COFACE payable by the Borrower to the COFACE Agent (for
the account of COFACE) on each Facility in accordance with Clause 12 (COFACE Insurance Premia).


 


“Collateral”
means the collateral security for the Obligations pledged or granted pursuant
to the Security Documents.


 


“Collateral Agreement” means the security agreement substantially
in the form agreed between the Borrower and the Security Agent on the date of
this Agreement (or as otherwise satisfactory to the Security Agent) between the
Borrower, each Domestic Subsidiary and the Security Agent.


 


“Collection Account”
has the meaning given to such term in the Accounts Agreement.


 


“Commercial Contracts” means:


 


(a)                                  the
Launch Services Contract; and


 


(b)                                 the
Satellite Construction Contract,


 


and, “Commercial Contract” means either of the foregoing as the
context requires.


 


“Commitment”
means a Facility A Commitment and/or a Facility B Commitment.


 


“Communication Act”
means the US Communications Act of 1934 (47 U.S.C. 151, et seq.) as amended.


 


“Communications Licences”
means the licences, permits, authorisations or certificates to construct, own,
operate or promote the telecommunications business of the Borrower and its
Subsidiaries (including, without limitation, the launch and operation of
Satellites) as granted by the FCC (and any other Governmental Authority), and
all extensions, additions and renewals thereto or thereof.


 


“Compliance Certificate”
means a certificate substantially in the form set out in Schedule 8
(Form of Compliance Certificate).


 


“Confidentiality Undertaking” means a confidentiality
undertaking substantially in the form set out in Schedule 10 (Form of Confidentiality Undertaking) or in any other form
agreed between the Borrower and the COFACE Agent.


 


“Consolidated”
means, when used with reference to financial statements or financial statement
items of any person, such statements or items on a consolidated basis in
accordance with applicable principles of consolidation under GAAP.


 


10

















 


“Consolidated EBITDA” means, for any period, the sum of the
following determined on a Consolidated basis, without duplication, for the
Borrower and its Subsidiaries in accordance with GAAP:


 


(a)                                  Consolidated Net Income for such period; plus


 


(b)                                 the sum of the following to
the extent deducted in determining Consolidated Net Income:


 


(i)                                     income and franchise taxes;


 


(ii)                                  Consolidated Interest Expense;


 


(iii)                               amortisation, depreciation and other
non-cash charges (except to the extent that such non-cash charges are reserved
for cash charges to be taken in the future);


 


(iv)                              extraordinary losses (other than from
discontinued operations) and any losses on foreign currency transaction; and


 


(v)                                 any Transaction Costs (provided
that, in no event shall the aggregate amount of Transaction Costs
relating to the negotiation of any Permitted Acquisitions or Permitted Joint
Venture Investments which are not consummated added back to net income during
any four (4) consecutive fiscal quarter period exceed one million Dollars
(US$1,000,000)), less


 


(c)                                  interest income and any extraordinary gains
and any gains on foreign currency transactions.


 


“Consolidated Interest
Expense” means, with respect to the Borrower and its Subsidiaries
for any period, the gross interest expense (including, interest expense
attributable to Capital Leases and all net payment obligations pursuant to
Hedging Agreements but excluding any non-cash interest) of the Borrower and its
Subsidiaries, all determined for such period on a Consolidated basis, without
duplication, in accordance with GAAP.


 


“Consolidated Net Income” means, with respect to the Borrower
and its Subsidiries, for any period of determination, the net income (or loss)
of the Borrower and its Subsidiaries for such period, determined on a
Consolidated basis in accordance with GAAP, provided that
there shall be excluded (without double counting) from the calculation of
income:


 


(a)                                  the net income (or loss) of any person
(other than a Subsidiary which shall be subject to paragraph (c) below),
in which the Borrower or any of its Subsidiaries has a joint interest with a third
party, except to the extent such net income is actually paid in cash to the
Borrower or any of its Subsidiaries by dividend or other distribution during
such period;


 


(b)                                 the net income (or loss) of any person
accrued prior to the date it becomes a Subsidiary of such person or is merged
into or consolidated with such person or any of its Subsidiaries or that person’s
assets are acquired by such person or 


 


11

















 


any of
its Subsidiaries except to the extent included pursuant to the foregoing
paragraph (a);


 


(c)                                  the net income (if positive) of any
Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary to the Borrower or any of its
Subsidiaries of such net income is not at the time permitted by operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute rule or governmental regulation applicable to such Subsidiary; and


 


(d)                                 the proceeds of any Equity Issuances and/or
Subordinated Indebtedness.


 


“Contingent Equity Release Date” has the meaning given to
such term in the Accounts Agreement.


 


“Contingent Equity Required Balance” has the meaning given to
such term in the Accounts Agreement.


 


“Contract Price” means the aggregate
price to be paid by the Borrower to:


 


(a)                                  the
Supplier under and in relation to the Satellite Construction Contract being an
amount (in aggregate) equal to two hundred ninety eight million nine hundred
nineteen thousand nine hundred and five Euros (€298,919,905) plus two hundred eighteen million four
hundred eighty three thousand two hundred and seventeen Dollars and eighty two
cents (US$218,483,217.82); and


 


(b)                                 the
Launch Services Provider under and in relation to the Launch Services Contract
being two hundred and sixteen million Dollars (US$216,000,000).


 


“Convertible Note Reserve Account” has the meaning given to
such term in the Accounts Agreement.


 


“Convertible Notes” means the five point seventy five per cent.  (5.75%) senior notes issued by the Borrower and due in
2028.


 


“Covenant Capital Expenditure” means all Capital Expenditures
other than Excluded Capital Expenditures.


 


“Current Assets” has the meaning given to
such term under GAAP but deducting
Cash and Cash Equivalent Instruments (excluding
any Cash and Cash Equivalent Instruments subject to any Lien,
including Liens created pursuant to the Security Documents).


 


“Current
Liabilities” has the meaning
given to such term under GAAP but excluding
the current portion of any long-term Financial Indebtedness outstanding on the
date of calculation.


 


“Debt Issuance” means any issuance of any Financial
Indebtedness for borrowed money by the Borrower or any of its
Subsidiaries.  The term “Debt Issuance” shall not include any Equity Issuance or any
Asset Disposition.


 


12

















 


“Debt Service” means the aggregate Dollar amount of
principal, interest, and, if any, fees and other sums required to be paid by
the Borrower pursuant to the Finance Documents and pursuant to all the Borrower’s
Financial Indebtedness incurred from time to time, including all amounts which
have become due and payable as at the date of calculation but which have not
been paid on such date for the Relevant Period.


 


“Debt Service Account”
has the meaning given to such term in the Accounts Agreement.


 


“Debt Service Coverage Ratio” means, on
any date, the ratio of:


 


(a)                                  Adjusted
Consolidated EBITDA (without double-counting),


 


(i)                                     plus, any Liquidity (in an amount exceeding five
million Dollars (US$5,000,000)) at the beginning of any relevant period of
calculation plus the cash
proceeds of any Equity Issuance or Subordinated Indebtedness raised during the
relevant period not committed, or required to be applied, for any other purpose
under the Finance Documents but including monies standing to the credit of the
Collection Account which are not required to be applied for any other purpose;


 


(ii)                                  less the sum of the following (without
double-counting);


 


(A)                              any
Covenant Capital Expenditure;


 


(B)                                any
changes in Working Capital; and


 


(C)                                any
cash taxes,


 


to


 


(b)                                 Debt
Service,


 


in each case, during
the relevant period of calculation.


 


“Debt Service Period”
has the meaning given to such term in the Accounts Agreement.


 


“Debt Service Reserve
Account” has the meaning given to such term in the Accounts
Agreement.


 


“Default” means
an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the Finance
Documents or any combination of any of the foregoing) be an Event of Default.


 


“Delegation Agreement” means each French law delegation agreement
substantially in the form agreed between the Borrower and the Security Agent on
the date of this Agreement (or as otherwise satisfactory to the Security Agent)
between the Borrower, the Security Agent and the Supplier or the Launch
Services Provider (as the case may be).


 


13

















 


“Disruption Event” means either or both of:


 


(a)                                  a material disruption to those payment or
communications systems or to those financial markets which are, in each case,
required to operate in order for payments to be made in connection with a
Facility (or otherwise in order for the transactions contemplated by the
Finance Documents to be carried out) which disruption is not caused by, and is
beyond the control of, any of the Parties; or


 


(b)                                 the occurrence of any other
event which results in a disruption (of a technical or systems-related nature)
to the treasury or payments operations of a Party preventing that, or any other
Party:


 


(i)                                     from performing its payment obligations
under the Finance Documents; or


 


(ii)                                  from communicating with other Parties in
accordance with the terms of the Finance Documents,


 


and which (in either such case) is not
caused by, and is beyond the control of, the Party whose operations are
disrupted.


 


“Dollar” and “US$” means the lawful currency for the time being of the
United States of America.


 


“Domestic Subsidiary”
means any Subsidiary organised under the laws of any state of the
United States or the District of Colombia, other than GCL Licensee LLC.


 


“DSA Required Balance”
has the meaning given to such term in the Accounts Agreement.


 


“DSRA Providers” means:


 


(a)                                  the Supplier;


 


(b)                                 the Launch Services Provider; and


 


(c)                                  Hughes.


 


“DSRA Required Balance”  means:


 


(a)                                  prior to but excluding the
date that is six (6) Months prior to the First Repayment Date, an amount
equal to forty six million seven hundred and seventy three thousand Dollars
(US$46,773,000);


 


(b)                                 from and including the date
that is six (6) Months prior to the First Repayment Date until but
excluding the date that is six (6) Months prior to the third Repayment
Date, an amount in aggregate equal to:


 


(i)                                     the principal amount due on
the third Repayment Date; and


 


(ii)                                  all interest, fees, costs and
expenses due and payable by the Borrower 


 


14

















 


under the Finance Documents on the next Payment Date,
accrued in respect of the principal amount referred to in paragraph (b)(i) above;
and


 


(c)                                  from and including the date
that is six (6) Months prior to the third Repayment Date until the Final
Maturity Date, an amount in aggregate equal to all principal, interest, fees,
costs and expenses due and payable by the Borrower under the Finance Documents
on the next Payment Date provided that,
if LIBOR exceeds the capped interest rate set out in the Interest Rate Cap
Agreement, the amount of such capped interest rate shall be used for the
purpose of calculating any interest under this paragraph (c) to the extent
such agreement is in full force and effect.


 


“Earth Station”
shall mean any earth station (gateway) licenced for operation by the FCC or by
a Governmental Authority outside the United States that is owned and
operated by the Borrower or any of its Subsidiaries.


 


“Eligible Amount” means:


 


(a)                                  in the case of Facility A, an amount which
is equivalent of eighty five per cent.
(85%) of the total cost of the Eligible Goods and Services which is at any time
due and payable under and in accordance with the Satellite Construction
Contract; and


 


(b)                                 in the case of Facility B, one hundred per cent.  (100%)
of the amount of twenty one million six hundred thousand Dollars
(US$21,600,000), representing goods made in France and/or services performed in
France under the Launch Services Contract.


 


“Eligible Goods and Services” means:


 


(a)                                  goods made in France and/or services
performed in France; and


 


(b)                                 goods and services (including transport and
insurance of any nature) originating from countries other than France and the
United States, incorporated in the items delivered by the Supplier and/or
the Launch Services Provider and which have been sub-contracted by the Supplier
and/or the Launch Services Provider and therefore remaining under its
responsibility, and recognised as being eligible by the French Authorities to
be financed by this Agreement,


 


which are
included in the aggregate Contract Price within an amount of eligibility of:


 


(i)                                     an amount equal to (in aggregate) two hundred ninety eight million nine hundred
nineteen thousand nine hundred and five Euros (€298,919,905) plus two hundred eighteen million four
hundred eighty three thousand two hundred and seventeen Dollars and eighty two
cents (US$218,483,217.82) under the Satellite Construction Contract; and


 


(ii)                                  twenty one million six hundred thousand
Dollars (US$21,600,000) under the Launch Services Contract.


 


15

















 


“Employee Benefit Plan” means any employee benefit plan
within the meaning of Section 3(3) of ERISA which:


 


(a)                                  is maintained or contributed to by any
Obligor or any ERISA Affiliate, or to which any Obligor or ERISA Affiliate has
an obligation to contribute; or


 


(b)                                 has at any time within the preceding six (6) years
been maintained or contributed to by any Obligor or any current or former ERISA
Affiliate, or with respect to which any Obligor or any such ERISA Affiliate has
had an obligation to contribute (or is deemed under Section 4069 of ERISA
to have maintained or contributed, or to have had an obligation to contribute,
or otherwise to have liability).


 


“Environmental Claims”
means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, judgments, liens, accusations, allegations,
notices of non-compliance or violation, investigations (other than internal
reports prepared by any person in the ordinary course of trading and not in
response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under
any Environmental Law or relating to any Environmental Permit issued, or any
approval given, under any such Environmental Law, including, any and all claims
by Governmental Authorities for enforcement, clean-up, removal, response,
remedial or other actions or damages, contribution, indemnification cost
recovery, penalties, fines, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to human
health or the environment.


 


“Environmental Laws” means any and all federal, foreign
state, state, regional, provincial and local laws, statutes, ordinances, codes,
rules, standards and regulations, common law, permits, licences, approvals,
interpretations and orders of courts or Governmental Authorities, and
amendments thereto, relating to the protection of human health or the
environment, including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, emission, release
or threatened release, investigation or remediation of Hazardous
Materials.  For the purposes of this
definition, the term “Environmental Laws”
shall include but not be limited to:


 


(a)                                  the US Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42 U.S.C. Section 9601,
et seq.); and


 


(b)                                 the US Resource Conservation and Recovery
Act, as amended (42 U.S.C. Section 6901, et seq.).


 


“Environmental
Permits” means any permit and other Authorisation and the filing of
any notification, report or assessment under any Environmental Law for the
operation of the business of any member of the Group conducted on or from the
properties owned or used by any member of the Group.


 


“Equity
Cure Contribution” means cash funds (including any amounts standing
to the credit of the Thermo Contingent Equity Account and/or the Borrower
Contingent Equity Account) contributed to the Borrower by equity and/or
Subordinated 


 


16

















 


Indebtedness (excluding the Initial Equity
and any amount of any Equity Issuance or Subordinated Indebtedness applied in
accordance with Clause 5.2(b)(i) to (iii) (Permitted
Withdrawals from the Collection Account) of the Accounts Agreement).


 


“Equity Issuance” means any issuance by the Borrower or any
Subsidiary to any person of:


 


(a)                                  shares of its Capital Stock;


 


(b)                                 any shares of its Capital Stock pursuant to
the exercise of options or warrants; or


 


(c)                                  any shares of its Capital Stock pursuant to
the conversion of any debt securities to equity.


 


The term “Equity
Issuance” shall not include any Asset Disposition, any Debt Issuance
or the conversion of the Convertible Notes.


 


“Ericsson”
means Ericsson Federal Inc. a Delaware corporation with a place of business at
1595 Spring Hill Road, Vienna, VA 22182, United States.


 


“ERISA” means
the US Employee Retirement Income Security Act of 1974, and the rules and
regulations thereunder, each as amended or modified from time to time.


 


“ERISA Affiliate”
means any person who together with any Obligor is treated as a single employer
within the meaning of Section 414(b), (c), (m) or (o) of the
Code or Section 4001(b) of ERISA.


 


“ERISA Termination Event” means:


 


(a)                                  a “Reportable Event”
described in Section 4043 of ERISA with respect to a Pension Plan for
which the notice requirement has not been waived by the PBGC; or


 


(b)                                 the withdrawal of any Obligor or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA; or


 


(c)                                  the termination of a Pension Plan, the
filing of a notice of intent to terminate a Pension Plan or the treatment of a
Pension Plan amendment as a termination, under Section 4041 of ERISA, if
such termination would require material additional contributions in order to be
considered a standard termination within the meaning of Section 4041(b) of
ERISA, or the filing under Section 4041(c) of ERISA of a notice of
intent to terminate any Pension Plan or the termination of any Pension Plan
under Section 4041(c) of ERISA; or


 


(d)                                 the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by
the PBGC; or


 


(e)                                  any other event or condition which would
reasonably be expected to constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or


 


17

















 


(f)                                    the failure to make a required contribution
to any Pension Plan that would reasonably be expected to result in the
imposition of a Lien or the provision of security under Section 412 or 430
of the Code or Section 302 or 4068 of ERISA, or the arising of such a
Lien; there being or arising any “unpaid minimum required
contribution” or “accumulated funding
deficiency” (as defined or otherwise set forth in Section 4971
of the Code or Part 3 of Subtitle B of Title I of ERISA), whether
or not waived; or the filing of any request for or receipt of a minimum funding
waiver under Section 412 of the Code or Section 302 of ERISA with
respect to any Pension Plan or Multiemployer Plan, or that such filing may be
made; or a determination that any Pension Plan is, or is expected to be, in
at-risk status under Title IV of ERISA; or


 


(g)                                 the partial or complete withdrawal of any
Obligor of any ERISA Affiliate from a Multiemployer Plan if withdrawal
liability is asserted by such plan; or


 


(h)                                 any event or condition which results, or is
reasonably expected to result, in the reorganisation or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA; or


 


(i)                                     any event or condition which results, or is
reasonably expected to result, in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or


 


(j)                                     the receipt by any Obligor or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from any
Obligor or any ERISA Affiliate of any notice, that a Multiemployer Plan is in
endangered or critical status under Section 305 of ERISA.


 


“Escrow Account”
means the escrow account with Société Générale pursuant to the escrow agreement
made between the Borrower, the Supplier and Société Générale, S.A. dated
21 December 2006.


 


“Euro” or “€” means the single currency of the Participating Member
States.


 


“Event of Default” means any event or circumstance specified
as such in Clause 23 (Events of Default).


 


“Excess Cash Flow” means, for any period
of determination, the sum of the following determined on a Consolidated basis,
without duplication, for the Borrower and its Subsidiaries in accordance with
GAAP:


 


(a)                                  Adjusted
Consolidated EBITDA for such period;


 


minus (to the
extent not already deducted in the calculation of Adjusted Consolidated
EBITDA),


 


(b)                                 the sum
of the following (without double-counting):


 


(i)                                     cash
taxes and Consolidated Interest Expense paid in cash for such period;


 


18
















 


(ii)                                  all
scheduled principal payments made in respect of Financial Indebtedness during
such period;


 


(iii)                               all
Covenant Capital Expenditures made during such period (to the extent funded by
earnings counted in the calculation of Adjusted Consolidated EBITDA);


 


(iv)                              any
changes to Working Capital during such period;


 


(v)                                 any
amount applied to fund any cash reserve required under the Finance Documents,
including the DSA Required Balance, the DSRA Required Balance and the CNRA
Required Balance in such period;


 


(vi)                              non-scheduled
principal payments with respect to any Loan in such period;


 


(vii)                           the
cash portion of the purchase price and other reasonable acquisition-related
costs paid by the Borrower for Permitted Acquisitions in such period;


 


(viii)                        any one
(1) time non-recurring cash expense; and


 


(ix)                                Transaction
Costs during such period (solely to the extent added back to net income in the
calculation of Adjusted Consolidated EBITDA).


 


“Excluded Capital Expenditure” means
Capital Expenditures funded:


 


(a)                                  with
Net Cash Proceeds received in connection with:


 


(i)                                     an
Insurance and Condemnation Event or an Asset Disposition and reinvested in
accordance with Clause 7.5 (Mandatory Prepayment - Insurance and Condemnation
Events); or


 


(ii)           an Equity Issuance; or


 


(b)                                 by the
issuance of Capital Stock of the Borrower to the seller (or an affiliate
thereof) of the related Capital Asset.


 


“Existing Canadian Note” means the three (3) Month libor
plus three point fifty per cent.  (3.50%) notes issued by Globalstar Canada Satellite Co. in favour
of the Borrower.


 


“Facilities” means:


 


(a)                                  Facility A; and


 


(b)                                 Facility B,


 


and, “Facility” means
either of the foregoing as the context requires.


 


“Facility A” has
the meaning given to such term in Clause 2.1(a) (Facility A
and Facility B).


 


19

















 


“Facility A Commitment” means:


 


(a)                                  in relation to an Original Lender, the
amount in Dollars set opposite its name under the heading “Facility A
Commitments US$” in Part A (Facility A) of Schedule
1 (Lenders and Commitments) and the amount of any other
Facility A Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any other Lender, the amount
of any other Facility A Commitment transferred to it under this Agreement,


 


to the extent not cancelled, reduced or
transferred by it under this Agreement.


 


“Facility A Loan”
means a loan made or to be made under Facility A or the principal amount
outstanding for the time being of that loan.


 


“Facility B”
has the meaning given to such term in Clause 2.1(b) (Facility A and Facility B).


 


“Facility B Commitment” means:


 


(a)                                  in relation to an Original Lender, the
amount in Dollars set opposite its name under the heading “Facility B
Commitments US$” in Part B (Facility B) of
Schedule 1 (Lenders and Commitments) and the amount of any other
Facility B Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any other Lender, the amount
of any other Facility B Commitment transferred to it under this Agreement,


 


to the extent not cancelled, reduced or
transferred by it under this Agreement.


 


“Facility B Loan”
means a loan made or to be made under Facility B or the principal amount
outstanding for the time being of that loan.


 


“Facility Office”
means the office or offices notified by a Lender to the COFACE Agent in writing
on or before the date it becomes a Lender (or, following that date, by not less
than five (5) Business Days’ written notice) as the office or offices
through which it will perform its obligations under this Agreement.


 


“FCC” shall mean
the Federal Communications Commission.


 


“FDIC” means the
Federal Deposit Insurance Corporation.


 


“Final Maturity Date”
means the date that is ninety six (96) Months after the First Repayment
Date.


 


“Final In-Orbit Acceptance” means the
date upon which each of the following has occurred:


 


(a)                                  the
twenty-fourth (24th) Satellite has
reached its final altitude;


 


20

















 


(b)                                 the
testing of the twenty-fourth (24th) Satellite
has been completed and the Borrower has provided to the COFACE Agent a
certificate signed by a Responsible Officer certifying that the Borrower has
delivered to its relevant insurer a confirmation that the Satellite Performance
Criteria has been successfully met in respect of the twenty-fourth (24th) Satellite
(and attaching a copy of such confirmation to such certificate); and


 


(c)                                  each
Satellite has drifted into its final orbital plane position,


 


as certified by the
Borrower in accordance with Clause 19.9 (Final
In-Orbit Acceptance).


 


“Finance Documents” means:


 


(a)                                  this Agreement;


 


(b)                                 the Accounts Agreement;


 


(c)                                  the Supplier Direct Agreement;


 


(d)                                 the LSP Direct Agreement;


 


(e)                                  each Security Document;


 


(f)                                    each Guarantee Agreement;


 


(g)                                 any Transfer Certificate;


 


(h)                                 each Promissory Note;


 


(i)                                     the Supplier Guarantee;


 


(j)                                     the Subordination Deed; and


 


(k)                                  any other document designated in writing as
a “Finance Document” by the COFACE Agent
and the Borrower (acting reasonably),


 


and, “Finance Document”
means any of the foregoing as the context requires.


 


“Finance Parties” means:


 


(a)                                  the COFACE Agent;


 


(b)                                 each Mandated Lead Arranger;


 


(c)                                  the Security Agent; and


 


(d)                                 the Lenders,


 


and, “Finance Party”
means any of the foregoing as the context requires.


 


“Financial Close”
means the date on which each of the conditions precedent referred to in
Clause 4.1 (Initial Conditions Precedent) and
Clause 4.2 (Further Conditions 


 


21

















 


Precedent) have been satisfied or
waived in accordance with the terms of this Agreement.


 


“Financial Indebtedness” means, with respect to the
Borrower and its Subsidiaries at any date and without duplication, the sum of
the following calculated in accordance with GAAP:


 


(a)                                  all liabilities, obligations and indebtedness
for borrowed money including, but not limited to, obligations evidenced by
bonds, debentures, notes or other similar instruments of any such person;


 


(b)                                 all obligations of the
Borrower or any of its Subsidiaries to pay the deferred purchase price of
property or services, to the extent classified as debt in accordance with GAAP
(including, without limitation, all obligations under non-competition, earn-out
or similar agreements), except Satellite Vendor Obligations and trade payables
arising in the ordinary course of trading:


 


(i)                                     not more than ninety (90) days past
due; or


 


(ii)                                  being duly contested by the Borrower in
good faith;


 


(c)                                  the Attributable Indebtedness of the
Borrower or any of its Subsidiaries with respect to the obligations of the Borrower
or such Subsidiary in respect of Capital Leases and Synthetic Leases
(regardless of whether accounted for as indebtedness under GAAP);


 


(d)                                 all Financial Indebtedness of any third
party secured by a Lien on any asset owned or being purchased by the Borrower
or any of its Subsidiaries (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by the Borrower or any of its Subsidiaries or is
limited in recourse;


 


(e)                                  all Guarantee Obligations of the Borrower
or any of its Subsidiaries;


 


(f)                                    all obligations, contingent or otherwise,
of the Borrower or any of its Subsidiaries relative to the face amount of
letters of credit, whether or not drawn, including without limitation, any
banker’s acceptances issued for the account of the Borrower of any of its
Subsidiaries;


 


(g)                                 all obligations of the Borrower or any of
its Subsidiaries to redeem, repurchase exchange, defease or otherwise make
payments in respect of Capital Stock of such person; and


 


(h)                                 all Net Hedging Obligations.


 


“First Repayment Date” means the date that is six (6) Months
after the earlier of:


 


(a)                                  the date that is two (2) Months after
the last Launch; or


 


(b)                                 15 June 2011.


 


22

















 


“Fiscal Year”
means the fiscal year of the Borrower and its Subsidiaries ending on
31 December.


 


“Foreign Investment Limitation” means, as of any date of
determination, an amount equal to the sum of:


 


(a)                                  twenty five million Dollars (US$25,000,000);
less


 


(b)                                 the aggregate amount of Financial
Indebtedness permitted pursuant to Clause 22.1(f)(iii) (Limitations on Financial Indebtedness) outstanding as of
such date of determination; less


 


(c)                                  the aggregate amount of all investments in
Foreign Subsidiaries (valued as of the initial date of such investment without
regard to any subsequent changes in value thereof) made after the date of this
Agreement and prior to such date of determination pursuant to
Clause 22.3(a)(ii)(B) (Limitations on Loans,
Investments and Acquisitions); less


 


(d)                                 the aggregate amount of all investments
(valued as of the initial date of such investment without regard to any
subsequent changed in value thereof) in Foreign Subsidiaries (or any entities
that would constitute Foreign Subsidiaries if the Borrower or one of its
Subsidiaries owned more than fifty per cent.
(50%) of the outstanding Capital Stock of such entity) made after the date of
this Agreement and prior to such date of determination pursuant to
Clause 22.3(c) (Limitations on Loans,
Investments and Acquisitions),


 


provided that, any investment of non-cash
consideration constituting stock in the Borrower (howsoever described):


 


(i)                                     in the case of a single transaction, that
does not exceed ten million Dollars (US$10,000,000) in value; and


 


(ii)                                  which transactions in aggregate since the
date of this Agreement do not exceed fifty million Dollars (US$50,000,000) in
aggregate,


 


shall be excluded from the determination of
the Foreign Investment Limitation.


 


“Foreign Subsidiary”
means any Subsidiary that is not a Domestic Subsidiary.


 


“French Authorities”
means the “Direction Générale du Trésor et de la Politique
Economiques (DGTPE)” of the French Ministry of Finance, any
successors thereto, or any other Governmental Authority in or of France
involved in the provision, management or regulation of the terms, conditions
and issuance of export credits including, among others, such entities to whom
authority in respect of the extension or administration of export financing
matters have been delegated, such as COFACE.


 


“French
Security Documents” has the meaning given to such term at Clause
28.2(a)(i) (Appointment of the Security
Agent (France)).


 


“GAAP” means
generally accepted accounting principles, as recognised by the American
Institute of Certified Public Accountants and the Financial Accounting
Standards Board, consistently applied and maintained on a consistent basis for
the 


 


23

















 


Borrower and its Subsidiaries throughout the
period indicated and consistent with the prior financial practice of the
Borrower and its Subsidiaries.


 


“Governmental Approvals”
means all authorisations, consents, approvals, permits, licences and exemptions
of, registrations and filings with, and reports to, all Governmental
Authorities.


 


“Governmental Authority”
means the government of the United States or any other nation, or of any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union, the European Central Bank,
or the International Telecommunications Union).


 


“Group” means the Borrower and its Subsidiaries from time to
time.


 


“Group Structure Chart” means the group structure chart set
out in Schedule 23 (Group Structure Chart).


 


“Guarantee Agreement” means:


 


(a)                                  the
guarantee agreement dated prior to Financial Close between the Security Agent
and each Subsidiary Guarantor set out in Schedule 26 (Subsidiary
Guarantors); and


 


(b)                                 each
guarantee agreement (to be in substantially the same form as the guarantee agreement
referred to in paragraph (a) above) to be entered into by a Subsidiary
Guarantor in accordance with Clause 21.5 (Additional
Domestic Subsidiaries).


 


“Guarantee Obligations” means, with
respect to the Borrower and its Subsidiaries, without duplication, any
obligation, contingent or otherwise, of any such person pursuant to which such
person has directly or indirectly guaranteed any Financial Indebtedness of any
other person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of any such person:


 


(a)                                  to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Financial Indebtedness (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets goods, securities
or services to take-or-pay, or to maintain financial statement condition or
otherwise); or


 


(b)                                 entered
into for the purpose of assuring in any other manner the obligee of such
Financial Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part),


 


provided  that, the term Guarantee Obligation shall not include
endorsements for collection or deposit in the ordinary course of trading.  The amount of any Guarantee Obligation shall
be deemed equal to the lesser of the stated or determinable amount of the
primary obligation or the maximum liability of the person giving the Guarantee
Obligation.


 


24

















 


“Hazardous Materials” means any substances or materials:


 


(a)                                  which are or become defined as hazardous
wastes, hazardous substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Environmental Law;


 


(b)                                 which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
harmful to human health or the environment and are or become regulated by any
Governmental Authority;


 


(c)                                  the presence of which require investigation
or remediation under any Environmental Law;


 


(d)                                 the possession, use, storage, discharge,
emission or release of which requires a permit or licence under any
Environmental Law or other Authorisation;


 


(e)                                  the presence of which could be deemed to
constitute a nuisance or a trespass or threatens to pose a health or safety
hazard to persons or neighbouring properties;


 


(f)                                    which consist of underground or above
ground storage tanks, whether empty, filled or partially filled with any
substance; or


 


(g)                                 which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.


 


“Hedging Agreement”
means any agreement with respect to any Interest Rate Contract, forward rate
agreement, commodity swap, forward foreign exchange agreement, currency swap
agreement, cross-currency rate swap agreement, currency option agreement or
other agreement or arrangement designed to alter the risks of any person arising
from fluctuations in interest rates, currency values or commodity prices, all
as amended, restated, supplemented or otherwise modified from time to time.


 


“Hedging Obligations”
means all existing or future payment and other obligations owing by the Borrower
under any Hedging Agreement with any person approved by the COFACE Agent.


 


“Holding Company” means, in relation to a company or
corporation, any other company or corporation in respect of which it is a
Subsidiary.


 


“Hughes” means Hughes Network Systems LLC a
limited liability company organised under the laws of Delaware with its
principal place of business at 11717 Exploration Lance, Georgetown,
Maryland 20876, USA.


 


“Incapacity” means absence of the legal right to enter into
binding contractual relations (other than pursuant to a civil or criminal
sanction (including without limitation, personal bankruptcy or analogous
proceedings)).


 


25

















 


“Individual In-Orbit Acceptance” means
the date upon which each of the following has occurred with respect to each
individual Satellite:


 


(a)                                  the
relevant Satellite has reached its final altitude;


 


(b)                                 the
relevant Satellite is fully operational and properly integrated into the
constellation;


 


(c)                                  the
testing of the relevant Satellite has been completed and the Borrower has
provided to the COFACE Agent a certificate signed by a Responsible Officer
certifying that the Borrower has delivered to its relevant insurer a
confirmation that the Satellite Performance Criteria has been successfully met
in respect of the relevant Satellite (and attaching a copy of such confirmation
to such certificate); and


 


(d)                                 the
relevant Satellite has drifted into its final orbital plane position,


 


as certified by the
Borrower in accordance with Clause 19.10 (Individual
In-Orbit Acceptance).


 


“Initial Equity” means the equity contributed by Thermo (or
any other third party) pursuant to paragraph 11 (Equity
Contribution) of Schedule 2 (Conditions Precedent)
or issued to Thermo pursuant to paragraph 10 (Equity/Subordinated
Debt) of Schedule 2 (Conditions Precedent).


 


“Insurance and Condemnation Event” means the receipt by the
Borrower or any of its Subsidiaries of any cash insurance proceeds or
condemnation award payable by reason of theft, loss, physical destruction,
damage or similar event with respect to any of their respective property or
assets.


 


“Insurances” means the insurances required by
Clause 21.4 (Insurance).


 


“Insurance Consultant” means Jardine Lloyd Thompson Limited.


 


“Insurance Proceeds Account” has the meaning given to such
term in the Accounts Agreement.


 


“Intellectual Property” has the meaning given to such term at
Clause 18.7(a) (Intellectual Property Matters).


 


“Interest Period” means:


 


(a)                                  in
relation to a Loan, each period determined in accordance with Clause 9 (Interest
Periods); and


 


(b)                                 in
relation to an Unpaid Sum, each period determined in accordance with
Clause 8.3 (Default
Interest).


 


“Interest Rate Cap
Agreement” means each interest rate cap agreement to be entered into
by the Borrower and the Original Lenders which shall (without limitation)
provide that monies payable to the Borrower under such agreements are paid
directly to the Debt Service Account.


 


26

















 


“Interest Rate Contract”
means any interest rate swap agreement, interest rate cap agreement, interest
rate floor agreement, interest rate collar agreement, interest rate option or
other agreement regarding the hedging of interest rate risk exposure executed
in connection with hedging the interest rate exposure of any person and any
confirming letter executed pursuant to such agreement, all as amended,
restated, supplemented or otherwise modified from time to time.


 


“Invoice” means
any invoice or demand for payment issued by the Supplier and/or the Launch
Services Provider pursuant to the Satellite Construction Contract and/or Launch
Services Contract, as the case may be.


 


“Landlord Waiver and Consent Agreements” means:


 


(a)                                  the landlord waiver and consent agreement
made between Four Sierra, LLC as
landlord and the Security Agent;


 


(b)                                 the landlord waiver and consent agreement
made between Orinda Equity Partners,
LLC as landlord and the Security Agent;


 


(c)                                  the landlord waiver and consent agreement
made between Sebring Airport Authority as landlord and the Security Agent; and


 


(d)                                 any other agreement
or document which the Security Agent and the Borrower (acting reasonably) from
time to time designate as a “Landlord Waiver and
Consent Agreement” for the purposes of this Agreement,


 


and, “Landlord Waiver and Consent Agreement” means any of the
foregoing, as the context requires.


 


“Launch” means
the disconnection of the lift-off plug of the SOYUZ launch vehicle, if such
event follows the ignition of the first (strap-on boosters) and second (core
stage) stage liquid engines of the launch vehicle.


 


“Launch Failure”
has the meaning given to such term in the Launch Services Contract.


 


“Launch
Insurance” has the meaning given to such term at Clause 21.4(c)(ii) (Launch
Insurance).


 


“Launch
Insurance Documentation” has the meaning given to such term at
Clause 21.4(c)(ii) (Launch Insurance).


 


“Launch
Services Contract” means the launch services contract dated 5 September 2007
and made between the Borrower and the Launch Services Provider for the
launching into low earth orbit of the Satellites through four (4) SOYUZ
launch vehicles, with an option for four (4) other similar launches.


 


“Launch Services Provider” means Arianespace, a French société
anonyme registered at the Registre
du Commerce et des Société of Evry under registration
number 318 516 457, whose registered office is at Boulevard de l’Europe,
91006 Evry, France.


 


27

















 


“Lender” means:


 


(a)                                  any Original Lender; and


 


(b)                                 any bank, financial institution, trust,
fund or other entity which has become a Party in accordance with Clause 26
(Changes to the Lenders),


 


which in each case has not ceased to be a
Party in accordance with the terms of this Agreement.


 


“LIBOR” means, in relation to any Loan:


 


(a)                                  the applicable Screen Rate; or


 


(b)                                 (if no Screen Rate is available for Dollars
for the Interest Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four (4) decimal places) as supplied to the COFACE Agent
at its request quoted by the Reference Banks to leading banks in the London
interbank market,


 


as of 11:00 a.m. (London time) on the
Quotation Day for the offering of deposits in Dollars and for a period
comparable to the Interest Period for that Loan provided
that, if the period from the beginning of the Interest Period or
from the date of Utilisation until the end of the Interest Period is:


 


(i)                                     a
period shorter than one (1) Month, the reference shall be one (1) Month;
or


 


(ii)                                  a
period longer than one (1) Month and which does not correspond to an exact
number of Months, the relevant rate shall be determined by using a linear
interpolation of the LIBOR according to usual practice in the international
monetary market.


 


“Licence Subsidiary”
shall mean any single purpose Wholly-Owned Subsidiary of the Borrower or of
another Subsidiary of the Borrower, the sole business and operations of which
single purpose Subsidiary is to hold one (1) or more Communications
Licences, except where it is a mandatory condition of a Communications Licence
in the relevant jurisdiction that any such entity is not such a vehicle (provided that, this exception shall not
apply to any Communications Licence issued by the FCC).


 


“Lien” means,
with respect to any asset, any mortgage, leasehold mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset.  For the purposes of this
Agreement, a person shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset.


 


“Liquidity” means the sum of Cash and Cash Equivalent
Investments held by any of the Obligors (other than Thermo), but excluding any amounts held in:


 


(a)                                  the Capital
Expenditure Account;


 


28
















 


(b)                                 the Borrower
Contingent Equity Account;


 


(c)                                  the Convertible Note
Reserve Account;


 


(d)                                 the Debt Service
Reserve Account; and


 


(e)                                  the Insurance
Proceeds Account.


 


“Loans” means:


 


(a)                                  a Facility A Loan; and


 


(b)                                 a Facility B Loan,


 


and, “Loan” means either
of the foregoing as the context requires.


 


“Loss Payee” has the meaning given to such term at
Clause 21.4(c)(ii)(B) (Launch Insurance).


 


“Loss Payee Clause” means a loss payee clause in
substantially the same form as set out in Schedule 28 (Loss Payee
Clause).


 


“LSP Direct Agreement” means the direct agreement substantially in
the form agreed between the Borrower and the Security Agent on the date of this
Agreement (or as otherwise satisfactory to the Security Agent) between the
Borrower, the Launch Services Provider and the Security Agent.


 


“Majority Lenders” means:


 


(a)                                  if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate more than seventy five per cent. (75%)
of the Total Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than seventy five per cent. (75%)
of the Total Commitments immediately prior to the reduction); or


 


(b)                                 at any
other time, a Lender or Lenders whose participations in the Loans then
outstanding aggregate more than seventy five per cent. (75%)
of all the Loans then outstanding.


 


“Mandatory Cost”
means the percentage rate per annum calculated by the COFACE Agent in
accordance with Schedule 4 (Mandatory
Cost Formula).


 


“Material Adverse Effect”  means with
respect to the Borrower or any of its Subsidiaries, a material adverse effect
on:


 


(a)                                  the
properties, business, operations, prospects or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole; or


 


(b)                                 the
legality, validity or enforceability of any provision of any Transaction
Document; or


 


29

















 


(c)                                  the
rights and remedies of any Finance Party under any of the Finance Documents; or


 


(d)                                 the
security interests provided under the Security Documents or the value thereof;
or


 


(e)                                  its
ability to perform any of its obligations under the Finance Documents,


 


provided
that, existing and future first-generation satellite
constellation degradation or failure issues and the effects thereof (which, for
the avoidance of doubt, shall exclude any Satellite delivered under the
Satellite Construction Contract) on the Borrower and its Subsidiaries, taken
individually or collectively, shall not constitute a Material Adverse Effect.


 


“Material Communications
Licence” shall mean any Communications Licence, the loss,
revocation, modification, non-renewal, suspension or termination of which,
could be reasonably expected to have a Material Adverse Effect.


 


“Material Contract”
means:


 


(a)                                  any contract or other agreement, written or
oral, of the Borrower or any of its Subsidiaries involving monetary liability
of or to any such person in an amount in excess of ten million Dollars
(US$10,000,000) per annum; or


 


(b)                                 any other contract or agreement, written or
oral, of the Borrower or any of its Subsidiaries the failure to comply with
which could reasonably be expected to have a Material Adverse Effect,


 


but excluding in either case any contract
or other agreement that the Borrower or such Subsidiary may terminate on less
than ninety (90) days notice without material liability.


 


“Material Subsidiary”
means:


 


(a)                                  the Borrower;


 


(b)                                 each Subsidiary
Guarantor;


 


(c)                                  Globalstar Canada Satellite Co.;


 


(d)                                 each Licence Subsidiary (including, GCL
Licensee LLC);


 


(e)                                  any Subsidiary of the Borrower which, in
the opinion of the COFACE Agent (acting reasonably), is of material operational
or strategic importance to the business of the Group;


 


(f)                                    any Subsidiary of the Borrower which has
gross assets (excluding intra group items) representing ten per cent. (10%) or more of the gross
assets of the Group; and


 


30

















 


(g)                                 any Subsidiary of the Borrower which has
gross revenues per annum  from all
sources including intra-company revenues which are allocated to such Subsidiary
of ten million Dollars (US$10,000,000) or more in aggregate.


 


For the purpose of paragraphs (f) and
(g) above:


 


(i)                                     subject to paragraph (ii) below:


 


(A)          the contribution of a
Subsidiary of the Borrower will be determined from its financial statements
which were consolidated into the latest relevant financial statements; and


 


(B)           the financial condition of the
Group will be determined from the latest relevant financial statements;


 


(ii)                                  if a Subsidiary of the Borrower becomes a
member of the Group after the date on which the latest relevant financial
statements were prepared:


 


(A)          the contribution of the
Subsidiary will be determined from its latest financial statements; and


 


(B)           the financial condition of the
Group will be determined from the latest relevant financial statements but
adjusted to take into account any subsequent acquisition or disposal of a
business or a company (including that Subsidiary);


 


(iii)                               the contribution of a Subsidiary will, if
it has Subsidiaries, be determined from its consolidated financial statements;


 


(iv)                              if a Material Subsidiary disposes of all or
substantially all of its assets to another member of the Group, it will
immediately cease to be a Material Subsidiary and the other member of the Group
(if it is not the Company or already a Material Subsidiary) will immediately
become a Material Subsidiary;


 


(v)                                 a Subsidiary of the Borrower (if it is not
already a Material Subsidiary) will become a Material Subsidiary on completion
of any other intra-Group transfer or reorganisation if it would have been a
Material Subsidiary had the intra-Group transfer or reorganisation occurred on
the date of the latest relevant financial statements; and


 


(vi)                              except as specifically mentioned in
paragraph (iv) above, a member of the Group will remain a Material
Subsidiary until the next relevant financial statements show otherwise under
paragraph (i) above.


 


If there is a dispute as to whether or not
a member of the Group is a Material Subsidiary, a determination by the COFACE
Agent will be, in the absence of manifest error, conclusive.


 


“Moody’s” means
Moody’s Investors Service, Inc. and any successor thereto.


 


31

















 


“Month” means a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:


 


(a)                                  (subject to paragraph (c) below)
if the numerically corresponding day is not a Business Day, that period shall
end on the next Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately preceding Business
Day;


 


(b)                                 if there is no numerically corresponding
day in the calendar month in which that period is to end, that period shall end
on the last Business Day in that calendar month; and


 


(c)                                  if an Interest Period begins on the last
Business Day of a calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period is to end.


 


The above rules will only apply to the
last Month of any period.


 


“Mortgages”
means the collective reference to each mortgage, deed of trust or other real
property security document, encumbering all real property now or hereafter
owned by the Borrower or any Subsidiary, in each case, in form and substance
reasonably satisfactory to the Security Agent and executed by the Borrower or
any Subsidiary in favour of the Security Agent (for and on behalf of itself and
the other Finance Parties), as any such document may be amended, restated,
supplemented or otherwise modified from time to time.


 


“Multiemployer Plan”
means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which any Obligor or any ERISA Affiliate is making, or is accruing an
obligation to make, or has accrued an obligation to make contributions, and
each such plan for the six (6) year period immediately following the
latest date on which any Obligor or ERISA Affiliate contributed to or had an
obligation to contribute to such plan.


 


“Net Cash Proceeds”
means, as applicable:


 


(a)                                  with respect to any Equity Issuance, Asset
Disposition or Debt Issuance, the gross cash proceeds received by the Borrower
or any of its Subsidiaries therefrom less all legal,
underwriting, placement agents and other commissions, discounts, premiums, fees
and expenses incurred in connection therewith; and


 


(b)                                 with respect to any Insurance and
Condemnation Event, the gross cash proceeds received by the Borrower or any of
its Subsidiaries less the sum of:


 


(i)            all fees and expenses in
connection therewith; and


 


(ii)           the principal amount of,
premium, if any, and interest on any Financial Indebtedness secured by a Lien
on the asset (or a portion thereof) subject to such Insurance and Condemnation
Event, which Financial Indebtedness is expressly permitted under this Agreement
and required to be repaid in connection therewith.


 


32

















 


“Net Debt”
means, in respect of the Group at any time, the consolidated amount of
Financial Indebtedness (excluding any Subordinated Indebtedness) of the Group
at that time but deducting the aggregate amount of
Liquidity at that time.


 


“Net Hedging Obligations”
means, as of any date, the Termination Value of any such Hedging Agreement on
such date.


 


“Obligations”
means, in each case, whether now in existence or hereafter arising:


 


(a)                                  the principal of and interest on (including
interest accruing after the filing of any bankruptcy or similar petition) the
Loans;


 


(b)                                 all Hedging Obligations; and


 


(c)                                  all other fees and commissions (including
attorneys’ fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Borrower or any
of its Subsidiaries to the Finance Parties, in each case under any Finance Documents
or otherwise, with respect to any Loan direct or indirect, absolute or
contingent, due or to become due, contractual or tortuous, liquidated or
unliquidated, and whether or not evidenced by any note.


 


“Obligors”
means:


 


(a)                                  the Borrower;


 


(b)                                 Thermo; and


 


(c)                                  each Subsidiary Guarantor,


 


and, “Obligor” means
any of the foregoing as the context requires.


 


“OFAC” means the
U.S. Department of the Treasury’s Office of Foreign Assets Control.


 


“Offshore Account Bank”
has the meaning given to such term in the Accounts Agreement.


 


“Onshore Account Bank”
has the meaning given to such term in the Accounts Agreement.


 


“Operating Lease”
means, as to any person as determined in accordance with GAAP, any lease of
property (whether real, personal or mixed) by such person as lessee which is
not a Capital Lease.


 


“Original
Lenders” has the meaning given to such term in the recitals.


 


“Participating Member State”
means any member state of the European Communities that, as of the date of this
Agreement, has adopted the Euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union,
other than Slovakia, Slovenia, Malta and Cyprus.


 


33

















 


“Party” means a
party to this Agreement.


 


“Payment Date”
has the meaning given to such term in the Accounts Agreement.


 


“PBGC” means the
Pension Benefit Guaranty Corporation or any successor agency.


 


“Pension Plan”
means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA.


 


“Permitted Acquisition”
means any investment by the Borrower, any Subsidiary Guarantor or Globalstar
Canada Satellite Co. in the form of acquisition of all or substantially all of
the business or a line of business (whether by the acquisition of Capital
Stock, assets or any combination thereof) of any other person (a “Target Company”) if each such acquisition
meets each of the following requirements:


 


(a)                                  no less than fifteen (15) days prior
to the proposed closing date of such acquisition, the Borrower shall have
delivered written notice and financial details of such acquisition to the
COFACE Agent, which notice shall include the proposed closing date of such
acquisition;


 


(b)                                 the Borrower shall have certified on or
before the closing date of such acquisition, in writing and in a form
reasonably acceptable to the COFACE Agent (acting on the instructions of the
Majority Lenders), that such acquisition has been approved by the board of
directors or equivalent governing body of the Target Company;


 


(c)                                  the Target Company shall be in a
substantially similar line of business as the Borrower and its Subsidiaries
pursuant to Clause 22.12 (Nature of Business)
or a parallel business the acquisition of which would be of commercial or
strategic importance to such business;


 


(d)                                 if such proposed transaction is a merger
with respect to the Borrower or any Subsidiary Guarantor, the Borrower shall
have received the prior written consent of the COFACE Agent to such
transaction;


 


(e)                                  such proposed transaction shall not include
or result in any actual or contingent liabilities that could reasonably be
expected to be material to the business, financial condition, operations or
prospects of the Borrower and its Subsidiaries, taken as a whole;


 


(f)                                    if such proposed transaction is in respect
of a Target Company which has negative Adjusted Consolidated EBITDA, the prior
written consent of the COFACE Agent shall be required unless:


 


(i)                                     such proposed transaction:


 


(A)          is in respect of a Target
Company which is an international gateway operator; and


 


(B)           the cash consideration of such
transaction does not exceed five million Dollars (US$5,000,000) in value,


 


34

















 


provided that, the Borrower shall only be
permitted to enter into two (2) transactions of the type described in this
paragraph (f)(i) in each Fiscal Year; or


 


(ii)                                  the relevant Target Company (other than an
international gateway operator) has for the twelve (12) Month period prior
to the date of the proposed transaction a negative Adjusted Consolidated EBITDA
no greater than two million Dollars (US$2,000,000) in aggregate when taking
into account all other acquisitions with negative Adjusted Consolidated EBITDA
made following the date of this Agreement.


 


For the purpose of the calculations
required to be made in respect of this paragraph (f) only:


 


(A)          any reference to “the Borrower and its Subsidiaries” in the
definitions of Consolidated EBITDA, Consolidated Net Income, Equity Issuance,
Subordinated Indebtedness, Capital Interest Expense and Capital Lease (and any
other definition used in the calculation of Adjusted Consolidated EBITDA) shall
be construed as being a reference to “the
Target Company and its Subsidiaries”;


 


(B)           any reference to “the Borrower” in the definitions of
Consolidated EBITDA, Consolidated Net Income, Equity Issuance, Subordinated
Indebtedness, Capital Interest Expense and Capital Lease (and any other
definition used in the calculation of Adjusted Consolidated EBITDA) shall be
construed as being a reference to “the
Target Company”; and


 


(C)           any reference to “Subsidiary” in the definitions of
Consolidated EBITDA, Consolidated Net Income, Equity Issuance, Subordinated
Indebtedness, Capital Interest Expense and Capital Lease (and any other
definition used in the calculation of Adjusted Consolidated EBITDA) shall be
construed as being a reference to a Subsidiary of a Target Company;


 


(g)                                 the Borrower shall have delivered to the
COFACE Agent:


 


(i)                                     forward looking financial statements taking
into account the proposed transaction and demonstrating to the satisfaction of
the COFACE Agent, compliance with each of the financial covenants set out in
Clause 20 (Financial Covenants)
on the proposed closing date of such acquisition and on a twelve
(12) Month projected basis; and


 


(ii)                                  such other documents reasonably requested
by the COFACE Agent; and


 


(h)                                 no Event of Default shall have occurred and
be continuing both before and after giving effect to such acquisition.


 


35

















 


“Permitted Joint Venture
Investments” means any investment by the Borrower, any Subsidiary
Guarantor or Globalstar Canada Satellite Co. in joint ventures and partnerships
if each such investment meets all of the following requirements:


 


(a)                                  no less than fifteen
(15) days prior to the proposed closing date (in the case where the
consent of the COFACE Agent and the Majority Lenders is required) or after the
closing date (in the case where no consent is required) of any such investment
of more than ten million Dollars (US$10,000,000), the Borrower shall have
delivered written notice of such investment to the COFACE Agent, which notice
shall include the proposed closing date (or actual closing date, applicable) of
such investment;


 


(b)                                 such joint venture or
partnership shall be in a substantially similar line of business as the
Borrower and its Subsidiaries pursuant to Clause 22.12 (Nature of Business) or a parallel business which is of
commercial or strategic importance to such business;


 


(c)                                  the Borrower shall have
delivered to the COFACE Agent:


 


(i)            such documents reasonably
requested by the COFACE Agent or any Finance Party (through the COFACE Agent)
pursuant to Clause 21.5 (Additional Domestic
Subsidiaries) to be delivered at the time required pursuant to
Clause 21.5 (Additional Domestic Subsidiaries);


 


(ii)           forward looking financial
statements taking into account the proposed transaction and demonstrating to
the satisfaction of the COFACE Agent, compliance with each of the financial
covenants set out in Clause 20 (Financial covenants)
on the proposed closing date of such investment and on a twelve (12) Month
projected basis;


 


(d)                                 no Event of Default shall have occurred and
be continuing both before and after giving effect to such investment;


 


(e)                                  if such investment is as a general partner,
such investment shall be made by a Subsidiary that has no assets other than
such investment; and in any case, such investment shall not include or result
in any contingent liabilities that could reasonably be expected to be material
to the business, financial condition, operations or prospects of the Borrower
and its Subsidiaries, taken as a whole; and


 


(f)                                    the Borrower shall have obtained the prior
written consent of the COFACE Agent and the Majority Lenders prior to the
consummation of such investment if the amount (including all cash and non-cash
consideration paid by or on behalf of the Borrower and its Subsidiaries in
connection with such investment) of such investment (or series of related
investments), together with all other investments in joint ventures and
partnerships consummated during the term of this Agreement, exceeds thirty
million Dollars (US$30,000,000) in aggregate (excluding any portion of such
investment consisting of Capital Stock of the Borrower).


 


36

















 


“Permitted Liens”
means the Liens permitted pursuant to Clause 22.2(a) to (t) (Limitations on Liens).


 


“Phase 3
Costs” means the aggregate amounts payable or to be paid with
respect to the construction, Launch and Launch Insurance of Phase 3
Satellites (including amounts payable under the Commercial Contracts arising
out of, and in connection with, the Phase 3 Satellites).


 


“Phase 3
Satellites” means the Satellites to be purchased by the Borrower
under Phase 3 (as such term is defined in the Satellite Construction
Contract) pursuant to the Satellite Construction Contract.


 


“PIK Interest”
means interest paid by the Borrower or any Subsidiary in respect of a debt
instrument by the issuance of additional debt securities only (which debt
securities will not mature or become payable prior to the maturity date of such
instrument and no cash payment is made by the Borrower or any Subsidiary).


 


“Project” means:


 


(a)                                  the supply of twenty
five (25) Satellites plus the long lead items for six (6) subsequent
Satellites by the Supplier pursuant to the Satellite Construction Contract; and


 


(b)                                 the launching of such Satellites by the Launch
Services Provider pursuant to the terms of the Launch Services Contract,


 


to form for the Borrower the second
generation satellite constellation.


 


“Project Accounts”
has the meaning given to such term in the Accounts Agreement.


 


“Promissory Notes”
means a promissory note made by the Borrower in favour of the Lenders
evidencing the portion of the Loan made by such Lender in accordance with
Clause 31.2 (Evidence of Financial Indebtedness),
substantially in the form of Schedule 25 (Form of Promissory
Note)
and any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part.


 


“Property All Risks
Insurance” means the insurance to be procured by the Borrower in
accordance with Clause 21.4(c)(i) (Insurance).


 


“Protected Party”
means a Finance Party which is or will be subject to any liability, or required
to make any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.


 


“Qualifying Certificate”
means a certificate from the Supplier and/or the Launch Services Provider (as
the case may be) substantially in the form set out in Schedule 18 (Qualifying Certificate) and signed by an Authorised
Signatory of such person.


 


“Qualifying Lender”
means a Lender which is either:


 


(a)                                  a United States person (as defined in Section 7701(a)(30)
of the Code);


 


37

















 


(b)                                 engaged in a U.S. trade or business
with which such interest is “effectively connected”
within the meaning of the Code;


 


(c)                                  entitled in respect of payments of interest
receivable by it under this Agreement to the benefit of a double taxation
agreement with the United States which makes provision for full exemption
from tax imposed by the United States on interest; or


 


(d)                                 entitled to the benefit of the “portfolio interest” exemption under Section 871(h) or
881(c) of the Code.


 


“Quotation Day” means, in relation to any period for which an
interest rate is to be determined, two (2) Business Days before the first
day of that period unless market practice differs in the London interbank
market in which case the Quotation Day will be determined by the COFACE Agent
in accordance with market practice in the London interbank market (and if
quotations would normally be given by leading banks in the London interbank
market on more than one day, the Quotation Day will be the last of those days).


 


“Reference Banks” means the principal London offices of BNP Paribas, Société Générale, Crédit
Industriel et Commercial, Calyon and
Natixis or such other banks as may be appointed by the COFACE Agent in consultation with the Borrower.


 


“Relevant Agreements” means:


 


(a)                                  the
Supplier Guarantee; and


 


(b)                                 each
Cash Contribution Agreement.


 


“Relevant Funds” has the meaning given to
such term at Clause 22.14(a)(iii) (Excess Cash
Flow / Purchase of Satellites).


 


“Relevant Period” means each period of twelve
(12) Months referred to in each of the columns titled “Column 1 — Relevant Period” in the
tables contained in Clauses 20.3 (Adjusted Consolidated EBITDA), 20.4
(Debt
Service Coverage Ratio) and 20.5 (Net Debt
to Adjusted Consolidated EBITDA).


 


“Repayment Date”
has the meaning given to such term at Clause 6.1(a) (Repayment).


 


“Repayment Schedule” means the repayment schedule set out at
Schedule 29 (Repayment Schedule).


 


“Repeating Representations” means each of the representations
set out in Clauses 18.1 (Status), 18.2 (Binding Obligations), 18.3 (Non-Conflict
with other Obligations), 18.4 (Power and
Authority), 18.6 (Authorisations), 18.10 (Margin
Stock), 18.11 (Government Regulation),
18.13 (Employee
Relations), 18.14 (Burdensome Provisions),
18.18 (Titles
to Properties), 18.23(a) (Satellites),
18.26 (OFAC),
18.27 (Governing
Law and Enforcement), 18.31 (No
Misleading Information) and 18.33 (No
Immunity).


 


38
















 


“Reservations” means:


 


(a)                                  the principle that equitable remedies may
be granted or refused at the discretion of a court;


 


(b)                                 the limitation of enforcement by laws
relating to insolvency, reorganisation and other laws generally affecting the
rights of creditors;


 


(c)                                  the time barring of claims under applicable
statutes of limitation;


 


(d)                                 the possibility that an undertaking to
assume liability for or indemnify a person against non-payment of stamp duty
may be void;


 


(e)                                  defences of set-off or counterclaim;


 


(f)                                    a court construing a Lien expressed to be
created by way of fixed security as being floating security;


 


(g)                                 any additional interest imposed pursuant to
any relevant agreement may be held to be irrecoverable on the grounds that it
is a penalty;


 


(h)                                 an English court may not give effect to any
indemnity for legal costs incurred by an unsuccessful litigant; and


 


(i)                                     equivalent principles, rights and defences
under the laws of any relevant jurisdiction.


 


“Responsible Officer” means the chief executive officer, president,
chief financial officer, controller, treasurer or assistant treasurer of an
Obligor or any other officer of an Obligor reasonably acceptable to the COFACE
Agent.  Any document delivered under this
Agreement that is signed by a Responsible Officer of an Obligor shall be
conclusively presumed to have been authorised by all necessary corporate,
partnership and/or other action on the part of such Obligor and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Obligor.


 


“Retained Excess Amount”
has the meaning given to such term at Clause 7.3(a) (Mandatory Prepayment — Initial Excess Cash Flow).


 


“S&P” means
Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.


 


“Sanctioned Entity” means:


 


(a)                                  an agency of the government of;


 


(b)                                 an organisation directly or indirectly
controlled by; or


 


(c)                                  a person resident in a country,


 


that is subject to a sanctions programme
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/sanctions/index.html, 


 


39

















 


or as otherwise published from time to time
as such programme may be applicable to such agency, organisation or person.


 


“Sanctioned Person”
shall mean a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise
published from time to time.


 


“Satellite”
shall mean any single non-geostationary satellite, or group of substantially
identical non-geostationary satellites, delivered or to be delivered by the
Supplier to the Borrower pursuant to the Satellite Construction Contract and
owned by, leased to or for which a contract to purchase has been entered into
by, the Borrower or any of its Subsidiaries, whether such satellite is in the
process of manufacture, has been delivered for Launch or is in orbit (whether
or not in operational service).


 


“Satellite Construction
Contract” means the satellite construction contract dated 30 November 2006
and made between the Borrower and the Supplier for the construction of forty
eight (48) satellites, as amended and supplemented from time to time (and as
further amended and restated on or about the date hereof and delivered in
satisfaction of the condition precedent set out at paragraph 7 (Commercial Contracts) of Schedule 2 (Conditions
Precedent)) for the purpose of, among other things, detailing a new
phasing of the contract for the first
twenty five (25) satellites and a final phase of
twenty three (23) satellites.


 


“Satellite
Performance Criteria” means the criteria set out at Schedule 31 (Satellite Performance Criteria).


 


“Satellite Vendor Obligations” means the obligations of the
Borrower or any of its Subsidiaries to any Satellite or Satellite launch vendor
or Affiliate thereof for the procurement, construction, launch and insurance of
all or part of one or more Satellites or Satellite launches for such Satellites
or a ground or in orbit space intended for future use or associated
improvements to the ground portion of the network of the Borrower and its
Subsidiaries, provided that such obligations:


 


(a)                                  are not evidenced by any promissory note;
and


 


(b)                                 are not secured by any Lien on any asset or
property of the Borrower or any Subsidiary thereof other than the asset or
personal property which is the subject of such obligation.


 


“Scheduled Launch Period”
means the three (3) Month contractual period during which a
Satellite is scheduled to be launched in accordance with the Launch Services
Contract.


 


“Screen Rate”
means the British Bankers’ Association Interest Settlement Rate for Dollars for
the relevant period displayed on the appropriate page of the Reuters screen.  If the agreed page is replaced or
service ceases to be available, the COFACE Agent may specify another page or
service displaying the appropriate rate after consultation with the Borrower
and the Lenders.


 


40

















 


“Security Documents” means:


 


(a)                                  the
Collateral Agreement;


 


(b)           each Mortgage;


 


(c)                                  the
Borrower Pledge of Bank Accounts;


 


(d)                                 each
Account Control Agreement;


 


(e)                                  the
Stock Pledge Agreement;


 


(f)                                    each
Landlord Waiver and Consent Agreement;


 


(g)                                 each
Delegation Agreement;


 


(h)                                 the
Thermo Pledge of Bank Account;


 


(i)                                     all
other agreements conferring, or purporting to confer, security in favour of the
Finance Parties with respect to the obligations of the Borrower under the
Finance Documents entered into after the date of this Agreement as required by
the terms of this Agreement;


 


(j)                                     all
agreements and other documents executed from time to time pursuant to any of
the foregoing; and


 


(k)                                  any
other agreement or document which the Security Agent and the Borrower (acting
reasonably) from time to time designate as a “Security
Document” for the purposes of this Agreement,


 


and, “Security Document” means any of the foregoing as the context
requires.


 


“Shareholder Distributions” means:


 


(a)                                  any dividend paid, made or declared, other
than a dividend paid exclusively in Capital Stock or rights to acquire Capital
Stock which, in each case, no cash payment is made by the Borrower;


 


(b)                                 any payment by way of return on or
repayment of share capital;


 


(c)                                  any payment of cash interest or capitalised
interest by the Borrower to Thermo under the Thermo Cash Contribution Agreement
or any other distribution (whether in cash or in kind), including, without
limitation, any distribution of assets or other payment whatsoever in respect
of share capital whether directly or indirectly but excluding any distributions
or other payments pursuant to any employee stock incentive plan (howsoever
described) expressly permitted under the terms of this Agreement;


 


(d)                                 any redemption, cancellation or repurchase
of the Borrower’s shares or any class of its shares other than any conversion
on mandatory repurchase or redemption of the Convertible Notes in accordance
with their terms or in 


 


41

















 


connection
with any employee stock incentive plan (howsoever described) expressly
permitted under the terms of this Agreement; and


 


(e)                                  any payments under a subordinated loan
(including interest and fees),


 


“Solvent” means, as to any Obligor on a particular date, that
any such person:


 


(a)                                  has capital sufficient to carry on its
business and transactions and all business and transactions in which it is
about to engage and is able to pay its debts as they mature;


 


(b)                                 has assets having a value, both at fair valuation
and at present fair saleable value, greater than the amount required to pay its
probable liabilities (including contingencies); and


 


(c)                                  does not believe that it will incur debts
or liabilities beyond its ability to pay such debts or liabilities as they
mature.


 


“Spot Rate of Exchange”
means the exchange rate between Euros and Dollars as notified by the COFACE
Agent to the Borrower and calculated on the basis of the official fixing rate
(as between Euros and Dollars) of the European Central Bank quoted on Reuter’s page ECB37,
more or less two (2) basis points, on the date that is two (2) Business
Days prior to the relevant Utilisation Date. 
If the agreed page is replaced or the service ceases to be
available, the COFACE Agent may specify another page or service displaying
the appropriate rate.


 


“Stock Pledge Agreement”
means the stock pledge agreement substantially in the form agreed between the
Borrower and the Security Agent on the date of this Agreement (or as otherwise
satisfactory to the Security Agent) between the Borrower, each Domestic
Subsidiary and the Security Agent.


 


“Subordinated Indebtedness” means any
Financial Indebtedness of the Borrower or any Subsidiary:


 


(a)                                  subordinated
in right and time of payment to the Obligations pursuant to an Acceptable
Intercreditor Agreement (provided that
the Borrower shall be entitled to pay PIK Interest);


 


(b)                                 to be
applied by the Borrower or the relevant Subsidiary (as the case may be)
towards:


 


(i)                                     financing
costs directly arising from the construction and Launch of the Satellites or
additional satellites;


 


(ii)                                  financing
payments due by the Borrower to second generation ground segment vendors; and/or


 


(iii)                               payment of the Borrower’s working capital
and general corporate purposes;


 


(c)                                  containing
such other terms and conditions, in each case as are reasonably satisfactory to
the COFACE Agent; and


 


42

















 


(d)                                 the
issuance of such Financial Indebtedness shall not cause, and could not
reasonably be expected to cause, a Default.


 


“Subordination Deed” means the subordination deed dated on or
about the date of this Agreement and made between Thermo, the Borrower, the
Security Agent and the COFACE Agent.


 


“Subsidiary” means, as to any person, of which more than
fifty per cent.  (50%)
of the outstanding Capital Stock having ordinary voting power to elect a
majority of the board of directors or other managers of such person is at the
time owned by or the management is otherwise controlled by such person
(irrespective of whether, at the time, Capital Stock of any other class or
classes of such person shall have or might have voting power by reason of the
occurrence of any contingency).  Unless
otherwise qualified, references to “Subsidiary” or “Subsidiaries” in this Agreement shall refer to those of the
Borrower.


 


“Subsidiary Guarantor” means:


 


(a)                                  each
direct or indirect Domestic Subsidiary of the Borrower in existence on the date
of this Agreement and set out in Schedule 26 (Subsidiary
Guarantors); or


 


(b)                                 which
becomes a party to a Guarantee Agreement pursuant to Clause 21.5 (Additional
Domestic Subsidiaries).


 


“Supplier” means Thales Alenia Space France, a French société par actions simplifiée registered
at the Registre du Commerce et des Société of
Toulouse under registration number 414 725 101, whose registered
office is at 26, Avenue Jean François Champollion, 31100 Toulouse, France.


 


“Supplier Direct Agreement” means the direct agreement substantially in
the form agreed between the Borrower and the Security Agent on the date of this
Agreement (or as otherwise satisfactory to the Security Agent) between the
Borrower, the Supplier and the Security Agent.


 


“Supplier Guarantee”
means the guarantee entered into on or about the date of this Agreement and
made between the Supplier as guarantor with the Borrower and the COFACE Agent  as beneficiaries, guaranteeing
the payment of an amount equal to twelve million five hundred thousand Dollars
(US$12,500,000).


 


“Synthetic Lease”
means any synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
Operating Lease in accordance with GAAP.


 


“Target Company” has the meaning given to
such term in the definition of “Permitted
Acquisition”.


 


“Tax” means any tax, levy, impost, duty, fee, assessment or
other charge or withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same).


 


43

















 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any Tax.


 


“Tax Deduction”
means a deduction or withholding for or on account of Tax from a payment under
a Finance Document.


 


“Tax Payment”
means either the increase in a payment made by the Borrower to a Finance Party
under Clause 13.1 (Tax Gross-up)
or a payment under Clause 13.2 (Tax Indemnity).


 


“Thermo Cash Contribution Agreement” means the agreement
entered into, or to be entered into, between Thermo and the Borrower delivered
in satisfaction of the condition precedent referred to in paragraph 18(i) (Other Documents and Evidence) of Schedule 2 (Conditions Precedent).


 


“Termination Value” means, in respect of any one (1) or
more Hedging Agreements, after taking into account the effect of any legally
enforceable netting agreement relating to such Hedging Agreements:


 


(a)                                  for any date on or after such Hedging
Agreements have been closed out and termination value(s) determined in
accordance therewith, such termination value(s); and


 


(b)                                 for any date prior to the date referenced
in paragraph (a), the amount(s) determined as the mark-to-market
value(s) for such Hedging Agreements, as determined based upon one (1) or
more mid-market or other readily available quotations provided by any
recognised dealer in such Hedging Agreements (which may include a Lender or an
Affiliate of a Lender).


 


“Thermo” means Thermo Funding Company LLC.


 


“Thermo Contingent Equity Account” has the
meaning given to such term in the Accounts Agreement.


 


“Thermo Group” means:


 


(a)                                  Globalstar
Satellite, L.P.;


 


(b)                                 Thermo;
and


 


(c)                                  Globalstar
Holdings, LLC.


 


“Thermo Facility Agreement”
means the second amended and restated credit agreement dated 17 December 2007
(as the same has been amended (prior to the date of this Agreement) from time
to time) and made between the Borrower and Thermo.


 


“Thermo Pledge of Bank Accounts” means the French law “Convention
de Nantissement de Comptes Bancaires” substantially in the form
agreed between Thermo and the Security Agent on the date of this Agreement (or
as otherwise satisfactory to the Security Agent) between Thermo, the Offshore
Account Bank and the Security Agent.


 


44

















 


“Total Commitments” means the aggregate of:


 


(a)                                  the Total Facility A Commitments; and


 


(b)                                 the Total Facility B Commitments.


 


“Total Facility A
Commitments” means the aggregate of the Facility A Commitments,
being five hundred sixty three million two hundred ninety nine thousand one
hundred and twenty Dollars (US$563,299,120) as at the date of this Agreement.


 


“Total Facility B
Commitments” means the aggregate of the Facility B Commitments,
being twenty three million forty two thousand and eight hundred and eighty
Dollars (US$23,042,880)  as at the date
of this Agreement.


 


“Transaction Costs”
means all transaction fees, charges and other amounts related to the Facilities
or any transaction which, if consummated, would be a Permitted Acquisition or a
Permitted Joint Venture Investment (including, without limitation, any
financing fees, merger and acquisition fees, legal fees and expenses, due
diligence fees or any other fees and expenses in connection therewith).


 


“Transaction Documents” means:


 


(a)                                  each Finance Document;


 


(b)                                 each
Commercial Contract;


 


(c)                                  each
Cash Contribution Agreement;


 


(d)                                 the
Thermo Cash Contribution Agreement;


 


(e)                                  any
Acceptable Intercreditor Agreement; and


 


(f)                                    each
Material Communications Licence,


 


and, “Transaction Document” means any of the foregoing as the
context requires.


 


“Transfer Certificate”
means a certificate substantially in the form set out in Schedule 5
(Form of Transfer Certificate) or any other form agreed
between the COFACE Agent and the Borrower (acting reasonably).


 


“Transfer Date” means, in relation to a transfer, the later
of:


 


(a)                                  the proposed Transfer Date specified in the
Transfer Certificate; and


 


(b)                                 the date on which the COFACE Agent executes
the Transfer Certificate.


 


“UCC” means the
Uniform Commercial Code as in effect in the State of New York, as amended
or modified from time to time.


 


“Unfunded Pension Liability”
of any Pension Plan means the excess of such Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA over the current value of such Pension
Plan’s assets, determined in accordance with the assumptions used for 


 


45

















 


funding such Pension Plan pursuant to Section 412
of the Code for the applicable plan year.


 


“Unpaid Sum” means any sum due and payable but unpaid by the
Borrower under the Finance Documents.


 


“United States” or “US” means the United States
of America.


 


“Utilisation”
means a utilisation of a Facility.


 


“Utilisation Date”
means the date of a Utilisation, being the date on which the relevant Loan is
to be made.


 


“Utilisation Request”
means a notice substantially in the form set out in Schedule 3 (Utilisation Request).


 


“VAT” means value added tax as provided for in the Value
Added Tax Act 1994 and any other tax of a similar nature.


 


“Wholly-Owned” means, with respect to a Subsidiary, that all
the shares of the Capital Stock of such Subsidiary are, directly or indirectly,
owned or controlled by the Borrower and/or one (1) or more of its
Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other
shares required by Applicable Law to be owned by a person other than the
Borrower).


 


“Withholding Forms”  means United States Internal Revenue Service (“IRS”) Form W-8BEN, W-8ECI or W-9 (or, in
each case, any successor form and, in each case, attached to an IRS Form W-8IMY if required) or any other IRS form by which a person
may claim an exemption from withholding of U.S. federal income tax on
interest payments to that person and, in the case of a person claiming an
exemption under the “portfolio interest
exemption”, a statement certifying that such person is not a “bank” within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code of 1986, as amended.


 


“Working
Capital” means, on any date, Current Assets less Current Liabilities.


 


1.2                                Construction


 


(a)                                  Unless
a contrary indication appears, any reference in this Agreement to:


 


(i)                                     the “COFACE Agent”, any “Finance Party”, any “Lender”, any “Mandated Lead Arranger”, an “Obligor”, any “Party” or the “Security
Agent” shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;


 


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


 


(iii)                               “determines” or “determined” means a determination made in the absolute
discretion of the person making the determination;


 


46

















 


(iv)                              the “equivalent” on any given date in one
currency (the “first currency”) of
an amount denominated in another currency (the “second currency”) is a reference to the amount of the first
currency which could be purchased with the second currency at the Spot Rate of
Exchange for the purchase of the first currency with the second currency;


 


(v)                                 a “Finance Document” or any other agreement or
instrument is a reference to that Finance Document or other agreement or
instrument as amended, novated, supplemented, extended or restated;


 


(vi)                              “guarantee” means any guarantee, letter of
credit, bond, indemnity or similar assurance against loss, or any obligation,
direct or indirect, actual or contingent, to purchase or assume any
indebtedness of any person or to make an investment in or loan to any person or
to purchase assets of any person where, in each case, such obligation is
assumed in order to maintain or assist the ability of such person to meet its
indebtedness;


 


(vii)                           “include” or “including” are to be construed without limitation;


 


(viii)                        “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;


 


(ix)                                a “person” includes any individual, firm,
company, corporation, government, state or agency of a state or any
association, trust, joint venture, consortium or partnership (whether or not
having separate legal personality);


 


(x)                                   a “regulation” includes any regulation, rule,
official directive, request or guideline (whether or not having the force of
law) of any governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or organisation;


 


(xi)                                a
provision of law is a reference to that provision as amended or re-enacted; and


 


(xii)                             a
time of day is a reference to Paris time.


 


(b)                                 Section,
Clause and Schedule headings are for ease of reference only.


 


(c)                                  Unless
a contrary indication appears, a term used in any other Finance Document or in
any notice given under or in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement.


 


(d)                                 A
Default (other than an Event of Default) is “continuing”
if it has not been remedied or waived and an Event of Default is “continuing” if it has not been waived.


 


47

















 


1.3                                Accounting
Terms


 


All accounting terms not specifically or
completely defined in this Agreement shall be construed in conformity with, and
all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the audited financial statements required by Clause 19.2 (Annual Financial Statements), except as otherwise
specifically prescribed in this Agreement.


 


1.4                                UCC
Terms


 


Terms defined in the UCC in effect on the
date of this Agreement and not otherwise defined in this Agreement shall,
unless the context otherwise indicates, have the meanings provided by those
definitions.  Subject to the foregoing,
the term “UCC” refers, as of any date of
determination, to the UCC then in effect.


 


1.5                                Third
Party Rights


 


(a)                                  Unless
expressly provided to the contrary in a Finance Document a person who is not a
Party has no right under the Contracts (Rights of Third Parties) Act 1999
(the “Third Parties Act”) to
enforce or to enjoy the benefit of any term of this Agreement.


 


(b)                                 Notwithstanding
any term of any Finance Document the consent of any person who is not a Party
is not required to rescind or vary this Agreement at any time.


 


2.                                      THE FACILITIES


 


2.1                                Facility A
and Facility B


 


Subject to the
terms of this Agreement, the Lenders make available to the Borrower a:


 


(a)                                  Dollar
term loan facility in an aggregate amount equal to the Total Facility A
Commitments (“Facility A”); and


 


(b)                                 Dollar
term loan facility in an aggregate amount equal to the Total Facility B
Commitments (“Facility B”).


 


2.2                                Finance
Parties’ Rights and Obligations


 


(a)                                  The
obligations of each Finance Party (other than the Lenders) under the Finance
Documents are several.  Failure by a
Finance Party (other than a Lender) to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under the
Finance Documents.  No Finance Party
(other than a Lender) is responsible for the obligations of any other Finance
Party (other than a Lender) under the Finance Documents.


 


(b)                                 The
obligations of each Lender under the Finance Documents are joint and
several.  Each Party agrees that this
Clause 2.2(b) is for the benefit of the


 


48
















 


Lenders only and the
Borrower acknowledges that it has no rights of any kind whatsoever under this
Clause 2.2(b).


 


(c)                                  The
rights of each Finance Party under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance
Documents to a Finance Party from an Obligor shall be a separate and
independent debt.


 


(d)                                 A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.


 


2.3                                Commercial
Contracts


 


Each Party acknowledges that the Finance
Parties shall have no responsibility or liability whatsoever regarding any
performance or non-performance by any party to a Commercial Contract and that
the Finance Parties shall have no obligation to intervene in any dispute in
connection with or arising out of such performance or non-performance.  Any such dispute shall not affect the
Borrower’s performance under this Agreement nor entitle the Borrower to any
suspension or other claim towards the Finance Parties.


 


3.                                      PURPOSE


 


3.1                                Purpose
— Facility A


 


The Borrower
shall apply all amounts borrowed by it under Facility A towards:


 


(a)                                  Payments to the Supplier


 


payment to the Supplier of the Eligible
Amounts in excess of such amounts already paid by the Borrower to the
Supplier.  Such Eligible Amount shall be
payable by way of direct disbursement to the Supplier in accordance with the
terms of the Satellite Construction Contract;


 


(b)                                 Reimbursement to the Borrower


 


reimbursement
to the Borrower of the Eligible Amounts already paid directly by the Borrower
to the Supplier in excess of the Advance Payment.  Such Eligible Amounts shall be payable by way
of direct disbursement to the Borrower. 
Subject to Clause 3.4(b) (Sub-Limits),
any amounts received by the Borrower by way of reimbursement may only be
applied by the Borrower as follows:


 


(i)                                     towards
payment to the Launch Services Provider of amounts not funded by
Facility B in an amount not exceeding two hundred and sixteen million
Dollars (US$216,000,000);


 


(ii)                                  towards
payment to Hughes in an amount not exceeding eighty seven million Dollars
(US$87,000,000);


 


(iii)                               towards
payment to Ericsson in an amount not exceeding eight million Dollars
(US$8,000,000); and


 


49

















 


(iv)                              towards
payment of the Borrower’s working capital and general corporate purposes in an
amount not exceeding one hundred and fifty million Dollars (US$150,000,000),


 


and, in each case, such additional amounts
as COFACE may agree; and


 


(c)                                  Payment of the COFACE Insurance Premia


 


payment to the COFACE Agent (for the
account of COFACE) of an amount equal to one hundred per cent.  (100%) of the
COFACE Insurance Premia with respect to Facility A, being the amount specified
by COFACE,


 


in each case, in accordance with the terms
of this Agreement.


 


3.2                                Purpose
— Facility B


 


The Borrower
shall apply all amounts borrowed by it under Facility B towards:


 


(a)                                  Payments to the Launch Services Provider


 


payment to the Launch Services Provider of
the Eligible Amounts.  Such Eligible
Amount shall be payable by way of direct disbursement to the Launch Services
Provider in accordance with the terms of the Launch Service Contract; and


 


(b)                                 Payment of the COFACE Insurance Premia


 


payment to the COFACE Agent (for the
account of COFACE) of an amount equal to one hundred per cent.  (100%) of the
COFACE Insurance Premia with respect to Facility B, being the amount specified
by COFACE,


 


in each case, in accordance with the terms
of this Agreement.


 


3.3                                Monitoring


 


No Finance Party is bound to monitor or
verify the application of any amount borrowed pursuant to this Agreement.


 


3.4                                Sub-Limits


 


The aggregate
amount that the Borrower may utilise under:


 


(a)                                  Clause 3.1(a) (Payments to the Supplier)
and Clause 3.1(b) (Reimbursement to the
Borrower) shall not exceed five hundred twenty eight million twenty
six thousand eight hundred and forty four Dollars (US$528,026,844);


 


(b)                                 Clause 3.1(b) (Reimbursement to the Borrower) shall not exceed three
hundred nine million five hundred forty three thousand six hundred and twenty
six Dollars (US$309,543,626); and


 


(c)                                  Clause 3.2(a) (Payments to the Launch Services Provider) shall not exceed
twenty one million six hundred thousand Dollars (US$21,600,000).


 


50





















 


4.                                      CONDITIONS OF UTILISATION


 


4.1                                Initial
Conditions Precedent


 


The Borrower shall not deliver a
Utilisation Request unless the COFACE Agent has received all of the documents
and other evidence listed in Schedule 2 (Conditions
Precedent) in form and substance satisfactory to the COFACE
Agent.  The COFACE Agent shall notify the
Borrower and the Lenders promptly upon being so satisfied.


 


4.2                                Further
Conditions Precedent


 


The Lenders
will only be obliged to comply with Clause 5.6 (Lenders’
Participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:


 


(a)                                  no
Default is continuing or would be likely to result from the proposed Loan;


 


(b)                                 the
Repeating Representations to be made by the Borrower are true in all material
respects;


 


(c)                                  the
credit insurance cover under the COFACE Insurance Policy extended by COFACE in
favour of the Lenders in respect of each Facility is in full force and effect
and has not been suspended or cancelled, and the COFACE Agent shall, in its
sole discretion, be satisfied that all conditions of the COFACE Insurance
Policy and of the credit insurance cover with respect to such COFACE Insurance
Policy have been satisfied in full and that the credit insurance coverage will
apply to such Utilisation;


 


(d)                                 each
Commercial Contract is in full force and effect and has not been suspended,
interrupted, cancelled, terminated, amended or modified in any material respect
(otherwise than as authorised by the COFACE Agent) and no arbitration or other
legal proceedings have been initiated between the Borrower and the Supplier
and/or Launch Services Provider (as the case may be) in respect of a Commercial
Contract;


 


(e)                                  for
any Utilisation Request made for the purpose referred to in Clause 3.1(b) (Reimbursement to the Borrower), the COFACE Agent shall have
received evidence that the payment to the Supplier of the corresponding
Invoices has been made;


 


(f)                                    each
of the documents, information and other evidence specified in and required to
be enclosed with each Utilisation Request and Qualifying Certificate, together
with any other documents, information or evidence requested by the COFACE Agent
(on behalf of the Lenders) and/or the French Authorities from time to time,
shall have been delivered to the COFACE Agent (in form and substance
satisfactory to the COFACE Agent);


 


(g)                                 the
Borrower shall have paid or arranged for payment when due:


 


(i)                                     all
fees, costs, expenses, charges and other amounts due and payable by it under
this Agreement on the Utilisation Date for such Utilisation; and


 


51





















 


(ii)                                  any
and all other amounts due and payable under this Agreement on such Utilisation
Date; the Borrower shall have delivered to the COFACE Agent such evidence of
payment as the COFACE Agent may reasonably request; and


 


(h)                                 in
respect of any payment to the Supplier, the Launch Services Provider and/or the
Borrower in accordance with Clause 3.1(a) (Payments to
the Supplier), 3.1(b) (Reimbursement to the
Borrower) and 3.2(a) (Payments to the Launch
Services Provider), the Supplier and/or the Launch Services Provider
(as the case may be) has delivered to the COFACE Agent a Qualifying
Certificate, which:


 


(i)                                     conforms
to the amount and payment timing specified in the relevant Utilisation Request;
and


 


(ii)                                  to
the extent applicable, specifies whether such Loan is to be applied in payment:


 


(A)                              of a
portion of the Contract Price directly to the Supplier or the Launch Services
Provider (as the case may be); or


 


(B)                                by
reimbursement to the Borrower to the account directed by the Borrower in the
Utilisation Request of any portion of the Contract Price paid by the Borrower
to the Supplier or the Launch Services Provider (as the case may be);


 


(i)                                     a
certificate from a Responsible Officer certifying that each of the eight (8) Satellites
referred to in Schedule 16 (Satellites) has
been launched, is in-service and is fully operational (in form and substance
satisfactory to the COFACE Agent); and


 


(j)                                     the
conditions in Clause 5 (Utilisation)
have been fulfilled.


 


The COFACE Agent shall notify the Borrower and the
Lenders promptly upon being so satisfied.


 


4.3                                Conditions
Precedent to Certain Utilisations


 


The Lenders
will only be obliged to comply with Clause 5.6 (Lenders’
Participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:


 


(a)                                  no
later than one hundred and twenty (120) days prior to the first day of the
Scheduled Launch Period, the COFACE Agent shall have received the drafts of the
Launch Insurance Documentation, in compliance with the provisions of
Clause 21.4 (Insurance) and in form and
substance satisfactory to the COFACE Agent; and


 


(b)                                 no
later than ninety (90) days prior to each scheduled Launch date, the
Borrower shall have delivered to the COFACE Agent the Launch Insurance
Documentation duly executed by each party thereto together with:


 


(i)                                     the
Loss Payee Clause;


 


52





















 


(ii)                                  each
certificate in respect of the Launch Insurance Documentation referred to in
Clause 21.4(c)(ii) (Launch Insurance);
and


 


(iii)                               evidence
that all premia due at that time has been paid in full in compliance with
Clause 21.4(c)(ii) (Launch Insurance)
and in form and substance satisfactory to the COFACE Agent.


 


4.4                                Failure
to Satisfy Conditions Precedent


 


(a)                                  The
Borrower agrees that all the initial conditions precedent referred to in
Clause 4.1 (Initial Conditions Precedent)
must be fulfilled within sixty (60) days of the date of this Agreement.


 


(b)                                 Subject
to paragraph (c) below, if the Borrower is unable to fulfil any such
conditions precedent within such sixty (60) day time period, each Lender’s
Commitment shall be immediately cancelled and each Lender shall have no further
obligations under this Agreement.


 


(c)                                  Each
Lender’s Commitment shall not be cancelled pursuant to paragraph (b) above
if each of the initial conditions precedent has been satisfied by the Borrower
except for the condition precedent referred to in paragraph 8 (COFACE Insurance Policy) of Schedule 2 (Conditions Precedent) but only to the extent that the COFACE
Insurance Policy has not been issued by COFACE for a reason not attributable to
a breach by the Borrower of the terms of the COFACE Insurance Policy.


 


5.                                      UTILISATION


 


5.1                                Delivery
of a Utilisation Request


 


(a)                                  The
Borrower may utilise a Facility by delivery to the COFACE Agent of a duly
completed Utilisation Request not later than 11:00 a.m. (Paris time)
ten (10) Business Days prior to the proposed Utilisation Date.


 


(b)                                 Each
Utilisation Request shall instruct the COFACE Agent to remit the amount
utilised on behalf of the Borrower to:


 


(i)                                     the
Supplier and/or the Launch Services Provider’s account, as the case may be, as
part of the payment of the relevant Contract Price; or


 


(ii)                                  in
relation to a reimbursement to the Borrower under Facility A, such account as
directed by the Borrower in the Utilisation Request.


 


5.2                                Borrower’s
Mandate


 


(a)                                  The
Borrower irrevocably authorises and mandates the COFACE Agent (on its behalf
and for its account):


 


(i)                                     in
the case of Facility A:


 


(A)                              to
pay the Supplier with respect to any Eligible Amount under the Satellite
Construction Contract, upon presentation of the 


 


53





















 


documents set out in
Schedule 11 (Payment Terms);


 


(B)                                to
reimburse the Borrower for any payments in respect of Eligible Goods and
Services under the Satellite Construction Contract which exceed fifteen per cent. (15%) of the Satellite
Construction Contract’s Contract Price; and


 


(C)                                to
pay to the COFACE Agent the COFACE Insurance Premia;


 


(ii)                                  in
the case of Facility B:


 


(A)                              to
pay the Launch Services Provider with respect to any Eligible Amount under the
Launch Services Contract, upon presentation of the documents set out in
Schedule 11 (Payment Terms); and


 


(B)                                to
pay to the COFACE Agent the COFACE Insurance Premia.


 


(b)                                 This
mandate is irrevocable.


 


(c)                                  The
payment terms set out in Schedule 11 (Payment Terms)
may only be amended with the prior written consent of the COFACE Agent (acting
on the instructions of all the Lenders).


 


(d)                                 The
Borrower agrees that any Utilisation made under or pursuant to this
Clause 5 shall be deemed to have been made to or for the benefit of the
Borrower and the Borrower waives all rights of protest it may have to the
contrary.


 


5.3                                Examination
of Documents


 


(a)                                  The
COFACE Agent’s role in examining the documents set out in Schedule 11 (Payment Terms) shall be limited to verifying that such
documents appear on their face to be what is indicated in such Schedule 11 (Payment Terms) and the COFACE Agent shall bear no other
responsibility in connection thereof. 
Such role shall be construed in accordance with the terms of Article 14
of the Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce 2007 Revision (Publication 600).


 


(b)                                 The
COFACE Agent and the Lenders shall not be responsible for any delay in making
available any Loans resulting from any requirement for the delivery of further
information or documents required by the COFACE Agent to confirm the relevant
conditions precedent in this Agreement have been met.


 


54





















 


5.4                                Completion
of a Utilisation Request


 


(a)                                  Each
Utilisation Request is irrevocable and will not be regarded as having been duly
completed unless:


 


(i)                                     the
proposed Utilisation Date is a Business Day within the Availability Period
applicable to that Facility; and


 


(ii)                                  the
currency and amount of the Utilisation comply with Clause 5.5 (Currency and Amount).


 


(b)                                 Only
one (1) Loan may be requested in each Utilisation Request.


 


(c)                                  The
Borrower may only deliver one (1) Utilisation Request in each Month
in respect of each Facility.


 


5.5                                Currency
and Amount


 


In the case
of:


 


(a)                                  Payments to the Supplier


 


any Utilisation to be made in accordance with
Clause 3.1(a) (Payments to the Supplier),
the Loan requested in a Utilisation Request must be in Dollars.  Each payment to the Supplier by the COFACE
Agent shall be made in Dollars;


 


(b)                                 Payments to the Launch Services Provider


 


any Utilisation to be made in accordance
with Clause 3.2(a) (Payments to the Launch
Services Provider), the Loan requested in a Utilisation Request must
be Dollars.  Each payment to the Launch
Services Provider by the COFACE Agent shall be made in Dollars;


 


(c)                                  Reimbursement to the Borrower


 


any Utilisation to be made in accordance
with Clause 3.1(b) (Reimbursement to
the Borrower), the Loan requested in a Utilisation Request must be
Dollars.  The Borrower shall confirm in
each such Utilisation Request that the requested Dollar amount is the Dollar
equivalent of the relevant Euro amount applying a Euro to Dollar exchange rate
of one (1) Euro for one point thirty four Dollars (US$1.34).  Each Utilisation made pursuant to Clause 3.1(b) (Reimbursement to the Borrower) shall be
made in Dollars;


 


(d)                                 Facility A — Payment of the COFACE Insurance Premia


 


any Utilisation to be made in accordance
with Clause 3.1(c) (Payment of the COFACE
Insurance Premia), the Loan requested in a Utilisation Request must
be, subject to Clause 12.3 (Borrower’s Payment
Obligations), thirty five million two hundred seventy two thousand
two hundred and seventy six Dollars (US$35,272,276). Any payment to COFACE of
the COFACE Insurance Premia shall be made in Dollars;


 


55

















 


(e)                                  Facility B — Payment of the COFACE Insurance Premia:


 


any Utilisation to be made in accordance
with Clause 3.2(b) (Payment of the COFACE
Insurance Premia), the Loan requested in a Utilisation Request must
be, subject to Clause 12.3(c) (Borrower’s Payment
Obligations), one million four hundred forty two thousand eight
hundred and eighty thousand Dollars (US$1,442,880).  Any payment to COFACE of the COFACE Insurance
Premia shall be made in Dollars;


 


(f)                                    Facility A — Minimum Amount


 


Facility A, the amount of the proposed Loan
must be an amount which is not more than the Available Facility and which is a
minimum of one million Dollars (US$1,000,000) or, if less, the Available
Facility; and


 


(g)                                 Facility B — Minimum Amount


 


Facility B, the amount of the proposed Loan
must be an amount which is not more than the Available Facility and which is a
minimum of one million Dollars (US$1,000,000) or, if less, the Available
Facility.


 


5.6                                Lenders’
Participation


 


(a)                                  If
the conditions set out in this Agreement have been met, each Lender shall make
its participation in each Loan available by the Utilisation Date through its
Facility Office.


 


(b)                                 The
amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan.


 


(c)                                  The
COFACE Agent shall notify each Lender of the amount of each Loan and the amount
of its participation in that Loan by 11:00 a.m.  (Paris
time) on a Business Day which is seven  (7) Business
Days prior to the proposed Utilisation Date for such Utilisation.


 


5.7                                Cancellation
of Commitment


 


The Total Commitments which, at that time,
are unutilised shall be immediately cancelled at the end of the Availability
Period.


 


6.                                      REPAYMENT


 


6.1                                Repayment


 


(a)                                  The Borrower shall make such repayments as may be
necessary to ensure that on each of the dates set out in the Repayment Schedule
(each a “Repayment Date”)
the aggregate amount of the Loans is reduced by an amount equal to the product
of the aggregate amount of the Loans as at the close of business in Paris on
the last day of the Availability Period and the percentage (as set out next to
the relevant Repayment Date) in the Repayment Schedule which corresponds to
such Repayment Date.  Notwithstanding
anything to the 


 


56





















 


contrary in Clause 6.1(b) below, all
outstanding Loans will in any event be repaid in full by the Borrower by the
Final Maturity Date.


 


(b)                                 If a
Launch Failure occurs or there is a failure to bring a Satellite into full
service and the Borrower elects to order a replacement Satellite in accordance
with Clause 7.5(b) (Mandatory Prepayment -
Insurance and Condemnation Events), the Lenders (acting unanimously)
may, subject to a specific approval from COFACE, upon written request from the
Borrower consent to an adjustment to the repayment profile of the Facilities.


 


6.2                                Reborrowing


 


The Borrower may not reborrow any part of a
Facility which is repaid.


 


7.                                      PREPAYMENT AND CANCELLATION


 


7.1                                Illegality


 


If it becomes
unlawful in any applicable jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan:


 


(a)                                  that
Lender shall promptly notify the COFACE Agent upon becoming aware of that
event;


 


(b)                                 upon
the COFACE Agent notifying the Borrower, the Commitment of that Lender will be
immediately cancelled; and


 


(c)                                  the
Borrower shall repay that Lender’s participation in the Loans made to the
Borrower on the last day of the Interest Period for each Loan occurring after
the COFACE Agent has notified the Borrower or, if earlier, the date specified
by the Lender in the notice delivered to the COFACE Agent (being no earlier
than the last day of any applicable grace period permitted by law).


 


7.2                                Mandatory
Prepayment - Exit


 


(a)                                  For
the purposes of this Clause 7.2:


 


“Acting in Concert”
means acting together pursuant to an agreement or understanding (formal or
informal).


 


“Borrower Change of Control” means:


 


(i)                                     the
Thermo Group shall at any time and for any reason fail to own and control
(without being subject to a voting trust, voting agreement, shareholders
agreement or any other agreement limiting or affecting the voting of such stock
other than any agreement entered into among the members of Thermo Group and
their Affiliates which agreement is not otherwise inconsistent with this
Agreement), free and clear of any Lien, at least forty per cent.  (40%)
of both the economic and voting interests in the Borrower’s Capital Stock
(assuming that all convertible 


 


57





















 


instruments, warrants or options then outstanding
have been exercised); or


 


(ii)                                  any “person” (other than the Thermo Group) together with its
Affiliates owns or acquires (together with all stock that such person or
Affiliate has the right to acquire whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
twenty five per cent. (25%)
or more of the economic or voting interests in the Borrower’s Capital Stock
(assuming that all convertible instruments, warrants or options then
outstanding have been exercised); or


 


(iii)                               any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the US Securities
Exchange Act of 1934 (the “Exchange Act”))
Acting in Concert or otherwise (other than Thermo Group), is or shall become
the “beneficial owner” (as defined in Rules 13(d)-3
and 13(d)-5 under the Exchange Act, except that a person shall be deemed to
have beneficial ownership of all stock that such person has the right to
acquire whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of thirty three per cent. (33%) or more of the economic or voting
interests in the Borrower’s Capital Stock (assuming that all convertible
instruments, warrants or options then outstanding have been exercised); or


 


(iv)                              the
board of directors of the Borrower shall cease to consist of a majority of
Continuing Directors.


 


“Change of Control”
means either a Borrower Change of Control or a Thermo Change of Control.


 


“Continuing Directors”
means the directors of the Borrower and/or Thermo Group (as the case may be) on
the date of this Agreement and each other director if such director’s nomination
for election to the board of directors of the Borrower and/or Thermo Group (as
the case may be) is recommended by a majority of the then Continuing Directors.


 


“Thermo Change of Control” means:


 


(i)                                     James Monroe III (or, in the event of
his death or Incapacity, his executors, trustees, heirs or legal
representatives) shall at any time and for any reason fail to own and control
(without being subject to a voting trust, voting agreement, shareholders
agreement or any other agreement limiting or affecting the voting of such
stock), free and clear of any Lien, at least forty per cent.  (40%) of both
the economic and voting interests in any member of the Thermo Group’s Capital
Stock (assuming that all convertible instruments, warrants or options then
outstanding have been exercised); or


 


(ii)                                  any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the US Securities Exchange Act of 1934 (the “Exchange Act”)),
Acting in Concert or otherwise, is or shall become the 


 


58
















 


“beneficial owner”
(as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, except
that a person shall be deemed to have beneficial ownership of all stock that
such person has the right to acquire whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
twenty five per cent. (25%)
or more of the economic or voting interests in any member of the Thermo Group’s
Capital Stock (assuming that all convertible instruments, warrants or options
then outstanding have been exercised); or


 


(iii)                               the board of directors (or its
equivalent) of any member of the Thermo Group shall cease to consist of a
majority of Continuing Directors; or


 


(iv)                              James Monroe III (or, in
the event of his death or Incapacity, his executors, trustees, heirs or legal
representatives) shall cease to have the power to elect or remove a majority of
the board of directors (or its equivalent) of any member of the Thermo Group;
or


 


(v)                                 any “change of
control” or similar event shall occur under any document with
respect to any equity or debt instrument issued or incurred by the Thermo
Group.


 


(b)                                 The Borrower must promptly notify the COFACE Agent if it becomes
aware that the circumstances referred to in paragraph (c) below have
occurred or are likely to occur.


 


(c)                                  Upon the occurrence of a Change of Control, the Total Commitments
shall be cancelled and all outstanding Loans, together with accrued interest
and all other amounts accrued under the Finance Documents, shall become
immediately due and payable.


 


7.3                                Mandatory Prepayment — Initial Excess Cash Flow


 


On the First
Repayment Date, the Borrower shall apply an amount equal to any Excess Cash
Flow accrued since the date of this Agreement (in an amount determined by the
Borrower and verified by the COFACE Agent) as follows:


 


(a)                                  firstly, provided no Default
has occurred and is continuing, in or towards payment of a portion of the
Borrower’s obligations to Thermo under the Thermo Cash Contribution Agreement,
through payment:


 


(i)                                     directly to the DSRA Providers on behalf of Thermo in the
proportions directed by Thermo to the Borrower in writing; and


 


(ii)                                  if Thermo’s obligations to the DSRA Providers under the Relevant
Agreements have been repaid in full, to Thermo in reimbursement of any amounts
previously paid directly by Thermo to the DSRA Providers under the Relevant
Agreements and not previously reimbursed by the Borrower to Thermo,


 


59

















 


of an amount not to exceed:


 


(A)                              thirty five million Dollars (US$35,000,000) plus the drawn amount
paid to the Borrower by the Supplier under the Supplier Guarantee; less


 


(B)                                any previous payments pursuant to this Clause 7.3(a) (Mandatory Prepayment — Initial Excess Cash Flow),
Clause 5.2(b)(i) and (ii) (Permitted
Withdrawals from the Collection Account) of the Accounts Agreement,
Clause 9.3 (Excess Funding in the Debt
Service Account) of the Accounts Agreement and/or Clause 7.4(a) (Mandatory Prepayment — Ongoing Excess Cash Flow)
below.


 


Any amounts paid to the DSRA Providers or Thermo
pursuant to this Clause 7.3(a) shall reduce any amount owing by the
Borrower to Thermo under the Thermo Cash Contribution Agreement.  No payment shall be made under this Clause
7.3(a) to the extent any payments would exceed the amount owing by the
Borrower to Thermo under the Thermo Cash Contribution Agreement (but excluding
any payments of interest or capitalised interest due and owing by the Borrower
to Thermo under the Thermo Cash Contribution Agreement).  Any such interest or capitalised interest
shall only be payable by the Borrower to Thermo following satisfaction of each
of the distribution conditions set out at Clause 22.6 (Limitations on Dividends and Distributions)
(other than Clause 22.6(b)(iv) (Limitations
on Dividends and Distributions));


 


(b)                                 secondly, in an amount up to fifty million Dollars (US$50,000,000) (the “Retained Excess Amount”) by way of transfer
to the Capital Expenditure Account in accordance with the Accounts Agreement;
and


 


(c)                                  finally, in mandatory prepayment of the Loans, in an amount determined by
the Borrower (and verified by the COFACE Agent) five (5) Business Days
prior to the First Repayment Date (taking into account all accrued Excess Cash
Flow less the amounts paid
pursuant to Clauses 7.3(a) and (b) above),


 


provided that, in each case, for the purpose
of calculating such Excess Cash Flow, an amount equivalent to the amount of
Debt Service to be paid by the Borrower on the First Repayment Date shall not
be included in the determination of Excess Cash Flow.


 


7.4                                Mandatory Prepayment — Ongoing Excess Cash Flow


 


No later than
thirty (30) days after the end of any Debt Service Period occurring after
the end of the Availability Period (other than the First Repayment Date), the
Borrower shall apply an amount equal to thirty per cent.
(30%) of all Excess Cash Flow as follows:


 


(a)                                  firstly, provided no Default
has occurred and is continuing, in or towards payment of a portion of the
Borrower’s obligations to Thermo under the Thermo Cash Contribution Agreement,
through payment:


 


(i)                                     directly to the DSRA Providers on behalf of Thermo in the
proportions directed by Thermo to the Borrower in writing; and


 


60

















 


(ii)                                  if Thermo’s obligations to the DSRA Providers under the Relevant
Agreements have been repaid in full, to Thermo in reimbursement of any amounts
previously paid directly by Thermo to the DSRA Providers under the Relevant
Agreements and not previously reimbursed by the Borrower to Thermo,


 


of an amount not to exceed:


 


(A)                              thirty five million Dollars (US$35,000,000) plus the drawn amount
paid to the Borrower by the Supplier under the Supplier Guarantee; less


 


(B)                                any previous payments pursuant to this Clause 7.4(a) (Mandatory Prepayment — Initial Excess Cash Flow),
Clause 5.2(b)(i) and (ii) (Permitted
Withdrawals from the Collection Account) of the Accounts Agreement,
Clause 9.3 (Excess Funding in the Debt
Service Account) of the Accounts Agreement and/or Clause 7.3(a) (Mandatory Prepayment — Ongoing Excess Cash Flow)
above.


 


Any amounts paid to the DSRA Providers or Thermo
pursuant to this Clause 7.4(a) shall reduce any amount owing by the
Borrower to Thermo under the Thermo Cash Contribution Agreement.  No payment shall be made under this Clause
7.4(a) to the extent any payments would exceed the amount owing by the
Borrower to Thermo under the Thermo Cash Contribution Agreement (but excluding
any payments of interest or capitalised interest due and owing by the Borrower
to Thermo under the Thermo Cash Contribution Agreement).  Any such interest or capitalised interest
shall only be payable by the Borrower to Thermo following satisfaction of each
of the distribution conditions set out at Clause 22.6 (Limitations on Dividends and Distributions)
(other than Clause 22.6(b)(iv) (Limitations
on Dividends and Distributions));


 


(b)                                 secondly, in an amount up to the Retained Excess Amount by way of transfer
to the Capital Expenditure Account in accordance with the Accounts Agreement,
to the extent not already funded pursuant to Clause 7.3(b) (Mandatory Prepayment — Initial Excess Cash Flow) or any
previous transfer pursuant to this provision; and


 


(c)                                  thirdly, in mandatory prepayment of the Loans provided
that, such prepayment shall not apply to the first ten million
Dollars (US$10,000,000) of Excess Cash Flow which accrues in each such Debt
Service Period.


 


7.5                                Mandatory Prepayment - Insurance and Condemnation Events


 


(a)                                  Subject to Clauses 7.5(b) below, the Borrower shall prepay
the Loans in an amount equal to one hundred per cent.  (100%) of the aggregate Net Cash Proceeds from any
Insurance and Condemnation Event and other extraordinary recoveries by the
Borrower or any of its Subsidiaries.


 


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(b)                                 Such prepayments shall be made within three (3) Business Days
after receipt of the Net Cash Proceeds from any Insurance and Condemnation
Event by the Borrower or any of its Subsidiaries, provided
that so long as no Event of Default has occurred and is continuing
(and so long as no action is being taken under Clause 24 (Remedies Upon an Event of Default)), no prepayment shall be
required:


 


(i)                                     in connection with such Insurance and Condemnation Event yielding in
aggregate less than five hundred thousand Dollars (US$500,000) in Net Cash
Proceeds; or


 


(ii)                                  with respect to any such Net Cash Proceeds which are committed by
the Borrower to be reinvested in replacement assets of French suppliers or the
procurement or Launch of a Satellite or Satellites acquired or planned to be
acquired pursuant to the then current business plan of the Borrower (as
evidenced by a contractual agreement for the purchase or acquisition of assets)
within six (6) Months after receipt of such Net Cash Proceeds and the proceeds arising out of the
relevant Insurance are placed into the Insurance Proceeds Account (such account
to be secured in favour of the Security Agent (for and on behalf of itself and
the other Finance Parties)) and, provided that
no action is being taken under Clause 24 (Remedies Upon an Event of
Default), will be applied by the COFACE Agent in payment to a
supplier of such replacement asset or replacement Satellite, any long lead
items, launch services, insurances or other costs directly arising in relation
to such purchase or Launch in accordance with the terms and conditions agreed
between the Borrower and the Supplier. 
Any excess in Net Cash Proceeds after taking into account such payments
and costs shall be transferred to the Collection Account in accordance with the
Accounts Agreement.


 


7.6                                Mandatory Prepayments — Asset Dispositions


 


(a)                                  The Borrower shall prepay the Loans in an amount equal to one
hundred per cent.  (100%) of the aggregate Net Cash Proceeds from any Asset
Disposition by the Borrower or any of its Subsidiaries.


 


(b)                                 Such prepayment shall be made within three (3) days after the
date of receipt of the Net Cash Proceeds of any such transaction by the
Borrower or any of its Subsidiaries, provided that,
so long as no Default has occurred and is continuing, no prepayment shall be
required pursuant to this Clause 7.6:


 


(i)                                     in connection with such Asset Dispositions yielding less than five
hundred thousand Dollars (US$500,000) in Net Cash Proceeds; or


 


(ii)                                  with respect to any such Net Cash Proceeds which are:


 


(A)                              reinvested within six (6) Months after receipt of such Net Cash
Proceeds by such person in replacement assets (useful to the Borrower and its
Subsidiaries in the conduct of business in accordance with Clause 22.12 (Nature of Business)); or


 


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(B)                                committed (as evidenced by a contractual agreement for the purchase
or acquisition of assets with a vendor of such assets) within six (6) Months
after receipt of such Net Cash Proceeds by such person to be reinvested in the
procurement or Launch of a Satellite or Satellites acquired or to be acquired
pursuant to the then current business plan of the Borrower.


 


7.7                                Mandatory Prepayment — COFACE Insurance Policy


 


If the credit
insurance cover under the COFACE Insurance Policy is not in full force and
effect for a reason not attributable to the Borrower, the COFACE Agent shall,
by not less than thirty (30) days notice to the Borrower, cancel the Total
Commitments and declare all outstanding Loans, together with accrued interest,
and all other amounts accrued under the Finance Documents immediately due and
payable, whereupon the Total Commitments will be cancelled and all such
outstanding amounts will become immediately due and payable.


 


7.8                                Voluntary Cancellation


 


The Borrower
may, if it:


 


(a)                                  gives the COFACE Agent not less than twenty (20) Business Days’
(or such shorter period as the Majority Lenders may agree) prior notice; and


 


(b)                                 delivers to the COFACE Agent a certificate signed by a Responsible
Officer demonstrating that the Borrower has sufficient funds to finance the
Project to the satisfaction of the COFACE Agent after any such cancellation,


 


cancel the
whole or any part (being a minimum amount of one million Dollars
(US$1,000,000)) of the Available Facility. 
Any cancellation under this Clause 7.8 shall reduce the Commitments
of the Lenders in inverse order of maturity.


 


7.9                                Voluntary Prepayment of the Loans


 


(a)                                  The Borrower may, if it gives the COFACE Agent not less than twenty
(20) Business Days’ (or such shorter period as the Majority Lenders may
agree) prior notice, prepay the whole or any part of the Loans (but, if in
part, being an amount that reduces the amount of the Loans by a minimum amount
of one million Dollars (US$1,000,000)). 
The Borrower may make a prepayment in accordance with this
Clause 7.9 on a Repayment Date.


 


(b)                                 If such a prepayment is made on a day other than the last day of an
Interest Period, the Borrower shall make that prepayment together with any
Break Costs in accordance with Clause 10.4 (Break Costs),
without premium or penalty.


 


(c)                                  The Loans may only be prepaid after the last day of the Availability
Period (or, if earlier, the day on which the Available Facility is zero (0)).


 


(d)                                 Any prepayment under this Clause 7.9 shall satisfy the
obligations under Clause 6.1 (Repayment)
against the outstanding repayment instalments in inverse order of maturity.


 


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7.10                          Right of Repayment and Cancellation in relation to a Single Lender


 


(a)                                  If:


 


(i)                                     any sum payable to any Lender by the Borrower is required to be
increased under paragraph (c) of Clause 13.1 (Tax Gross-up); or


 


(ii)                                  any Lender claims indemnification from the Borrower under
Clause 13.2 (Tax Indemnity) or
Clause 14.1 (Increased Costs),


 


the Borrower
may, whilst the circumstance giving rise to the requirement for indemnification
continues, give the COFACE Agent notice of cancellation of the Commitment of
that Lender and its intention to procure the repayment of that Lender’s
participation in the Loans.


 


(b)                                 On receipt of a notice referred to in paragraph (a) above,
the Commitment of that Lender shall immediately be reduced to zero (0).


 


(c)                                  On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if earlier,
the date specified by the Borrower in that notice), the Borrower shall repay
that Lender’s participation in that Loan.


 


7.11                          Application of Mandatory Prepayments


 


Other than in
respect of any prepayment under Clause 7.1 (Illegality),
all mandatory prepayments shall be applied:


 


(a)                                  pro rata among the
Facilities and within each Facility; and


 


(b)                                 in inverse order of maturity across the remaining scheduled
repayments under each Facility.


 


7.12                          Restrictions


 


(a)                                  Any notice of cancellation or prepayment given by the Borrower under
this Clause 7 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that cancellation
or prepayment.


 


(b)                                 Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.


 


(c)                                  The Borrower may not reborrow any part of a Facility which is prepaid.


 


(d)                                 The Borrower shall not repay or prepay all or any part of the Loans
or cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this Agreement.


 


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(e)                                  No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.


 


(f)                                    If the COFACE Agent receives a notice under this Clause 7 it
shall promptly forward a copy of that notice to either the Borrower or the
affected Lender, as appropriate.


 


(g)                                 The Borrower shall promptly notify the COFACE Agent (but in any
event no later than three (3) Business Days) of any payment pursuant to
this Clause 7, and the COFACE Agent shall promptly notify the Lenders (but
in any event no later than five (5) Business Days) of the same.


 


8.                                      INTEREST


 


8.1                                Calculation of Interest


 


The rate of
interest on each Loan for each Interest Period is the percentage rate
per annum which is the aggregate of the:


 


(a)                                  Applicable Margin;


 


(b)                                 LIBOR; and


 


(c)                                  Mandatory Cost, if any.


 


8.2                                Payment of Interest


 


The Borrower
shall pay accrued interest on each Loan on the last day of each Interest
Period.


 


8.3                                Default Interest


 


(a)                                  If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from the
due date up to the date of actual payment (both before and after judgment) at a
rate which, subject to paragraph (b) below, is two per cent. (2%) higher than the rate
which would have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the COFACE Agent
(acting reasonably).  Any interest
accruing under this Clause 8.3 shall be immediately payable by the
Borrower on demand by the COFACE Agent.


 


(b)                                 If any overdue amount consists of all or part of a Loan which became
due on a day which was not the last day of an Interest Period relating to that
Loan:


 


(i)                                     the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest Period relating
to that Loan; and


 


65

















 


(ii)                                  the rate of interest applying to the overdue amount during that
first Interest Period shall be two per cent.
(2%) higher than the rate which would have applied if the overdue
amount had not become due.


 


(c)                                  Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and payable.


 


8.4                                Notification of Rates of Interest


 


The COFACE
Agent shall within two (2) Business Days after a Quotation Day notify the
Lenders and the Borrower of the determination of a rate of interest under this
Agreement.


 


9.                                      INTEREST PERIODS


 


9.1                                Interest Periods


 


(a)                                  The Interest Period for which any Loan is outstanding shall be
divided into successive Interest Periods each of which shall start on the last
day of the preceding such Interest Period.


 


(b)                                 The initial Interest Period for each Loan:


 


(i)                                     shall start on (and include) the Utilisation Date of such Loan and
end on (but excluding) the last day of such Interest Period.  Each subsequent Interest Period in respect of
such Loan shall start (and include) on the last day of the previous Interest
Period and end on (but excluding) the last day of the relevant Interest Period provided that, the Interest Period
occurring prior to the First Repayment Date shall start (and include) on the
last day of the previous Interest Period and end on (but excluding) the First
Repayment Date; and


 


(ii)                                  after the first Utilisation shall start on (and include) the
Utilisation Date of the relevant Loan and end on (but excluding) the last day
of the current Interest Period for the first Utilisation.


 


9.2                                Duration


 


(a)                                  The duration of each Interest Period shall, save as otherwise
provided in this Agreement, be six (6) Months or such other period as the
COFACE Agent may agree, provided that
any Interest Period that would otherwise extend beyond a Repayment Date
relating to any Loan shall be of such duration that it shall end on that
Repayment Date.  Each following Interest
Period shall end on the following Repayment Date.


 


(b)                                 An Interest Period for a Loan shall not extend beyond the Final
Maturity Date.


 


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9.3                                Non-Business Days


 


If an Interest
Period would otherwise end on a day which is not a Business Day, that Interest
Period will instead end on the next Business Day in that calendar month (if
there is one) or the preceding Business Day (if there is not).


 


9.4                                Consolidation of Loans


 


If two (2) or
more Interest Periods:


 


(a)                                  relate to Loans; and


 


(b)                                 end on the same date,


 


those Loans
will be consolidated into, and treated as, a single Loan on the last day of the
Interest Period.


 


10.                               CHANGES TO THE CALCULATION OF INTEREST


 


10.1                          Absence of Quotations


 


Subject to
Clause 10.2 (Market Disruption), if LIBOR is
to be determined by reference to the Reference Banks but a Reference Bank does
not supply a quotation by 11:00 a.m. (London time) on the Quotation
Day, the applicable LIBOR shall be determined on the basis of the quotations of
the remaining Reference Banks.


 


10.2                          Market Disruption


 


(a)                                  If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender’s share of that Loan
for the Interest Period shall be the percentage rate per annum which is
the sum of:


 


(i)                                     the Applicable Margin;


 


(ii)                                  the rate notified to the COFACE Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in respect of
that Interest Period, to be that which expresses as a percentage rate
per annum the cost to that Lender of funding its participation in that
Loan from whatever source it may reasonably select; and


 


(iii)                               the Mandatory Cost, if any, applicable to that Lender’s
participation in the Loan.


 


(b)                                 In this Agreement “Market
Disruption Event” means:


 


(i)                                     at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one (1) of
the Reference Banks supplies a rate to the COFACE Agent to determine LIBOR for
Dollars for the relevant Interest Period; or


 


(ii)                                  before close of business in London on the Quotation Day for the
relevant Interest Period, the COFACE Agent receives notifications


 


67

















 


from a Lender or Lenders (whose
participations in a Loan exceed thirty per cent.
(30%) of that Loan) that the cost to it or them of obtaining matching deposits
in the London interbank market would be in excess of LIBOR.


 


10.3                          Alternative Basis of Interest or Funding


 


(a)                                  If a Market Disruption Event occurs and the COFACE Agent or the
Borrower so requires, the COFACE Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty (30) days) with a view
to agreeing a substitute basis for determining the rate of interest.


 


(b)                                 Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the Borrower, be binding
on all Parties.


 


10.4                          Break Costs


 


(a)                                  The Borrower shall, within three (3) Business Days of demand by
a Finance Party, pay to that Finance Party its Break Costs attributable to all
or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid Sum.


 


(b)                                 Each Lender shall, as soon as reasonably practicable after a demand
by the Agent, provide a certificate confirming the amount of its Break Costs
for any Interest Period in which they accrue.


 


11.                               FEES


 


11.1                          Commitment Fee


 


(a)                                  The Borrower shall pay to the COFACE Agent (for the account of each
Lender) a fee computed at the rate of one point fifteen per cent. (1.15%) per annum on
that Lender’s daily undrawn Available Commitment under:


 


(i)                                     Facility A for the Availability Period applicable to Facility
A; and


 


(ii)                                  Facility B for the Availability Period applicable to Facility
B.


 


(b)                                 The accrued commitment fee is payable:


 


(i)                                     on the last day of each successive period of six (6) Months
which ends during the Availability Period;


 


(ii)                                  on the last day of the Availability Period; and


 


(iii)                               if cancelled in full, on the cancelled amount of the relevant
Lender’s Commitment at the time the cancellation is effective.


 


11.2                          Up-front Fee


 


(a)                                  The Borrower shall pay to the COFACE Agent (for the account of each
Mandated Lead Arranger) an arrangement fee in an amount equal to two point 


 


68
















 


eight per cent.
(2.8%) of the aggregate principal amount of the Total Commitments as at the
date of this Agreement (the “Up-front Fee”).


 


(b)                                The Up-front Fee shall be due on
the date of this Agreement and payable on the earlier of:


 


(i)                                    sixty (60) days from the date
of this Agreement; and


 


(ii)                                 Financial Close.


 


11.3                          COFACE Agent Fees


 


(a)                                 The Borrower shall pay to the
COFACE Agent (for its own account) an annual agency fee of fifteen thousand
Dollars (US$15,000) (the “COFACE Agent Fee”),
which must be paid annually in advance in accordance with paragraph (b) below.


 


(b)                                The first payment of this COFACE
Agent Fee is payable at Financial Close. 
Each subsequent payment is payable on each anniversary of the date of
this Agreement for as long as any Commitment is in force or amount is
outstanding under the Finance Documents.


 


11.4                          Security Agent Fees


 


(a)                                 The Borrower shall pay to the
Security Agent (for its own account) an annual agency fee of thirty thousand
Dollars (US$30,000) (the “Security Agent Fee”),
which must be paid annually in advance in accordance with paragraph (b) below.


 


(b)                                The first payment of this Security
Agent Fee is payable at Financial Close. 
Each subsequent payment is payable on each anniversary of the date of
this Agreement for as long as any Commitment is in force or amount is
outstanding under the Finance Documents.


 


11.5                          Non-Refundable


 


Each of the
fees set out in this Clause 11 (Fees) once paid
are non-refundable and non-creditable against other fees payable in connection
with the Project.


 


12.                              COFACE
INSURANCE PREMIA


 


12.1                          Payment by the Borrower


 


The Borrower
shall bear the cost of the COFACE Insurance Premia payable in respect of, or in
connection with, the COFACE Insurance Policy and shall pay all such amounts to
the COFACE Agent (for the account of COFACE). 
The COFACE Insurance Premia is due and payable in full to the COFACE
Agent (for the account of COFACE) on the Utilisation Date for the first
Utilisation.


 


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12.2                          Financing with Proceeds of Loans


 


(a)                                 Subject to all the other terms and
conditions of this Agreement, the COFACE Insurance Premia shall be financed
from the first Utilisation under the Facilities.


 


(b)                                Loans made under a Facility on
account of the COFACE Insurance Premia shall be included in the principal
amount of a Facility and repaid to the COFACE Agent in accordance with the
relevant provisions in this Agreement and the Borrower shall pay interest on
such amount at the rates determined under, and in accordance with,
Clause 8 (Interest) and repay such amount
together with all other principal as stated in Clause 6.1 (Repayment).


 


12.3                          Borrower’s Payment Obligations


 


(a)                                 The Borrower acknowledges that the
obligation to pay one hundred per cent.
(100%) of the COFACE Insurance Premia as and when it arises is
absolute and unconditional.  If the
COFACE Insurance Premia due and payable is not financed or paid out of any
Loans under this Agreement or in the event that the undrawn amount under a
Facility is not sufficient to finance one hundred per cent. (100%) of the COFACE Insurance Premia due to
COFACE under the COFACE Insurance Policy, the Borrower shall pay directly to
the COFACE Agent the amount of any such COFACE Insurance Premia not so financed
or paid.


 


(b)                                Subject to Clause 12.3(c) below,
as of the date of this Agreement the premia due to COFACE shall be calculated
at a rate estimated to be six point sixty eight per cent.  (6.68%), and
in an estimated amount being the aggregate of:


 


(i)                                    thirty five million two hundred
seventy two thousand two hundred and seventy six Dollars (US$35,272,276) in
respect of Facility A; and


 


(ii)                                 one million four hundred and forty
two thousand eight hundred and eighty Dollars (US$1,442,880) in respect of
Facility B.


 


(c)                                 The COFACE Agent will only be
notified of the actual amount of the COFACE Insurance Premia on the date of
final issuance of each COFACE Insurance Policy. 
Following receipt of each COFACE Insurance Policy, the COFACE Agent
shall promptly notify the Borrower of the actual amount of the COFACE Insurance
Premia.  If the actual amount of the
COFACE Insurance Premia is greater than the estimated amount set out in
paragraph (b) above, the Borrower shall be obliged to make payment of
the actual amount of the COFACE Insurance Premia.  Accordingly, the estimated amount provided in
Clauses 3.1(c) (Payment of the COFACE
Insurance Premia) and 3.2(b) (Payment of
the COFACE Insurance Premia) shall be automatically increased or
reduced by the amounts required to ensure the payment of the premiums after
adjustment by COFACE, which would result in an increase or reduction by a
corresponding amount in the Total Commitments subject to available
Commitments).  The Borrower acknowledges
that the obligation to pay the COFACE Insurance premia related to this
Agreement is absolute and unconditional.


 


70

















 


(d)                                Notwithstanding the above a
minimum premium being, as of the date of this Agreement, in an amount equal to
the Dollar equivalent of one thousand five hundred and fifteen Euros (€1,515)
shall be paid to COFACE by the Borrower in respect of each COFACE Insurance
Policy upon the execution of the relevant COFACE Insurance Policy.  Such amounts shall remain the property of
COFACE and are accordingly payable by the Borrower to COFACE in any event.


 


(e)                                 Subject to paragraph (f) below,
the Borrower shall not be entitled to claim any credit or reimbursement of the
COFACE Insurance Premia, including in the event of a cancellation, an
acceleration or a prepayment of any Loan under this Agreement.


 


(f)                                   Notwithstanding paragraph (e) above
and subject to paragraph (g) below:


 


(i)                                    with respect to any partial
cancellation of any undisbursed amount of a Facility; and/or


 


(ii)                                 immediately following the end of
the Availability Period, where an Available Commitment remains outstanding,


 


the Borrower
shall be entitled to submit a request to the COFACE Agent for reimbursement of
any proportionate amount of the COFACE Insurance Premia, in an amount up to one
hundred per cent. (100%) of
the total amount of the COFACE Insurance Premia, which relates to such
cancelled amount of any undisbursed portion of a Facility and/or outstanding
Available Commitment referred to in paragraphs (i) and (ii) above,
as the case may be, in each case such amount to be subject to the approval of
the COFACE Agent.


 


(g)                                No reimbursement of the COFACE
Insurance premia shall be made by the COFACE Agent if:


 


(i)                                    a Default shall have occurred and
be continuing; and


 


(ii)                                 the COFACE Agent has not received
funds from COFACE in an amount equal to the COFACE Insurance Premia to be
reimbursed.


 


13.                              TAX GROSS-UP
AND INDEMNITIES


 


13.1                          Tax Gross-up


 


(a)                                 The Borrower shall make all
payments to be made by it without any Tax Deduction, unless a Tax Deduction is
required by law.


 


(b)                                The Borrower shall, promptly upon
becoming aware that it must make a Tax Deduction (or that there is any change
in the rate or the basis of a Tax Deduction) notify the COFACE Agent
accordingly.  Similarly, a Lender shall
notify the COFACE Agent on becoming so aware in respect of a payment payable to
that Lender.  If the COFACE Agent
receives such notification from a Lender it shall notify the Borrower.


 


71

















 


(c)                                 If a Tax Deduction is required by law
to be made by the Borrower, the amount of the payment due from the Borrower
shall be increased to an amount which (after making any Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax Deduction
had been required.


 


(d)                                If the Borrower is required to
make a Tax Deduction, it shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed and in the
minimum amount required by law.


 


(e)                                 Within thirty (30) days of
making either a Tax Deduction or any payment required in connection with that
Tax Deduction, the Borrower making that Tax Deduction shall deliver to the
COFACE Agent for the Finance Party entitled to the payment evidence reasonably
satisfactory to that Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing authority.


 


(f)                                   The Borrower is not required to
make an increased payment to a Lender under paragraph (c) above for a
Tax Deduction in respect of Tax from a payment of interest on any Loan, if on
the date on which the payment falls due:


 


(i)                                    the payment could have been made
to the relevant Lender without a Tax Deduction if it was a Qualifying Lender,
but on that date that Lender is not, or has ceased to be, a Qualifying Lender
other than as a result of any change after the date it became a Lender under
this Agreement:


 


(A)                             in (or in the interpretation,
administration, or application of) any law or double taxation agreement, or any
published practice or concession of any relevant authority; or


 


(B)                               in the circumstance of the
Borrower; or


 


(ii)                                 the Borrower is able to
demonstrate that the payment could have been made to the Lender without the Tax
Deduction had that Lender complied with its obligations under paragraph (g) below.


 


(g)                                Each Lender agrees to use
reasonable efforts (consistent with legal and regulatory restrictions and
subject to overall policy considerations of such Lender) to file any
Withholding Forms as requested by the Borrower that may be necessary to
establish an exemption from withholding of U.S. federal income taxes.


 


13.2                          Tax Indemnity


 


(a)                                 The Borrower shall (within three (3) Business
Days of demand by the COFACE Agent) pay to a Protected Party an amount equal to
the loss, liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance Document.


 


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(b)                                Paragraph (a) above
shall not apply with respect to any Tax assessed on a Finance Party:


 


(i)                                    under the law of the jurisdiction
in which that Finance Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is treated as resident for tax
purposes; or


 


(ii)                                 under the law of the jurisdiction
in which that Finance Party’s Facility Office is located in respect of amounts
received or receivable in that jurisdiction,


 


if that Tax is
imposed on or calculated by reference to the net income received or receivable
(but not any sum deemed to be received or receivable) by that Finance Party or
to the extent a loss, liability or cost:


 


(A)                             is compensated for by an increased
payment under Clause 13.1 (Tax Gross-up);
or


 


(B)                               would have been compensated for by
an increased payment under Clause 13.1 (Tax
Gross-up) but was not so compensated solely because one of the
exclusions in paragraph (f) of Clause 13.1 (Tax Gross-up) applied.


 


(c)                                 A Protected Party making, or
intending to make a claim under paragraph (a) above shall promptly
notify the COFACE Agent of the event which will give, or has given, rise to the
claim, following which the COFACE Agent shall notify the Borrower.


 


(d)                                A Protected Party shall, on
receiving a payment from the Borrower under this Clause 13.2, notify the
COFACE Agent.


 


13.3                          Tax Credit


 


If the
Borrower makes a Tax Payment and the relevant Finance Party determines that:


 


(a)                                 a Tax Credit is attributable
either to an increased payment of which that Tax Payment forms part, or to that
Tax Payment; and


 


(b)                                that Finance Party has obtained,
utilised and retained that Tax Credit,


 


the Finance
Party shall pay an amount to the Borrower which that Finance Party determines
will leave it (after that payment) in the same after-Tax position as it would
have been in had the Tax Payment not been required to be made by the Borrower provided that,


 


(i)                                    any Finance Party may determine,
in its sole discretion consistent with the policies of such Finance Party,
whether to seek a Tax Credit;


 


(ii)                                 if such Tax Credit is subsequently
disallowed or reduced, the Borrower shall indemnify the Finance Party for such
amount; and


 


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(iii)                              nothing in this Clause 13.3
shall require a Finance Party to disclose any confidential information to the
Borrower (including, without limitation, its tax returns or its calculations).


 


13.4                          Stamp Taxes


 


The Borrower
shall pay and, within three (3) Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document.


 


13.5                          Value Added Tax


 


(a)                                 All amounts set out, or expressed
to be payable under a Finance Document by any Party to a Finance Party which
(in whole or in part) constitute the consideration for VAT purposes shall be
deemed to be exclusive of any VAT which is chargeable on such supply, and
accordingly, subject to paragraph (b) below, if VAT is chargeable on
any supply made by any Finance Party to any Party under a Finance Document,
that Party shall pay to the Finance Party (in addition to and at the same time
as paying the consideration) an amount equal to the amount of the VAT (and such
Finance Party shall promptly provide an appropriate VAT invoice to such Party).


 


(b)                                Where any Party is required by any
of the Finance Documents to reimburse a Finance Party in respect of any costs
or expenses, that Party shall also at the same time pay and indemnify the Finance
Party against all VAT incurred by the Finance Party in respect of the costs or
expenses to the extent that the Finance Party reasonably determines that
neither it nor any other member of the group of which it is a member for VAT
purposes is entitled to credit or repayment from the relevant tax authority in
respect of the VAT.


 


14.                              INCREASED
COSTS


 


14.1                          Increased Costs


 


(a)                                 Subject to Clause 14.3 (Exceptions) the Borrower shall, within five (5) Business
Days of a demand by the COFACE Agent, pay for the account of a Finance Party
the amount of any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of:


 


(i)                                    the introduction of or any change
in (or in the interpretation, administration or application of) any law or
regulation; or


 


(ii)                                 compliance with any law or
regulation made after the date of this Agreement.


 


(b)                                In this Agreement “Increased Costs” means:


 


(i)                                    a reduction in the rate of return
from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;


 


(ii)                                 an additional or increased cost;
or


 


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(iii)                              a reduction of any amount due and
payable under any Finance Document,


 


which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.


 


14.2                          Increased Cost Claims


 


(a)                                 A Finance Party intending to make
a claim pursuant to Clause 14.1 (Increased Costs)
shall notify the COFACE Agent of the event giving rise to the claim, following
which the COFACE Agent shall promptly notify the Borrower.


 


(b)                                Each Finance Party shall, as soon
as practicable after a demand by the COFACE Agent, provide a certificate
confirming the amount of its Increased Costs.


 


14.3                          Exceptions


 


Clause 14.1
(Increased Costs) does not apply to the
extent any Increased Cost is:


 


(a)                                 attributable to a Tax Deduction
required by law to be made by the Borrower;


 


(b)                                compensated for by
Clause 13.2 (Tax Indemnity)  (or would have been compensated for under Clause 13.2
(Tax Indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of
Clause 13.2 (Tax Indemnity) applied);


 


(c)                                 compensated for by the payment of
the Mandatory Cost; or


 


(d)                                attributable to the wilful breach
by the relevant Finance Party or its Affiliates of any law or regulation.


 


15.                              OTHER
INDEMNITIES


 


15.1                          Currency Indemnity


 


(a)                                 If any sum due from an Obligor
under the Finance Documents (a “Sum”),
or any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the “First
Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:


 


(i)                                    making or filing a claim or proof
against an Obligor;


 


(ii)                                 obtaining or enforcing an order,
judgment or award in relation to any litigation or arbitration proceedings,


 


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the Borrower
shall as an independent obligation, within three (3) Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including any
discrepancy between:


 


(A)                             the rate of exchange used to
convert that Sum from the First Currency into the Second Currency; and


 


(B)                               the rate or rates of exchange
available to that person at the time of its receipt of that Sum.


 


(b)                                The Borrower waives any right it
may have in any jurisdiction to pay any amount under the Finance Documents in a
currency or currency unit other than that in which it is expressed to be
payable.


 


15.2                          Other Indemnities


 


The Borrower
shall, within five (5) Business Days of demand, indemnify each Finance
Party (and its Affiliates) against any cost, loss or liability incurred by that
Finance Party (or Affiliate) as a result of:


 


(a)                                 the occurrence of any Event of
Default;


 


(b)                                a failure by the Borrower to pay
any amount due under a Finance Document on its due date, including without
limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing among the Finance Parties);


 


(c)                                 funding, or making arrangements to
fund, its participation in a Loan requested by the Borrower in a Utilisation
Request but not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or negligence by
that Lender alone);


 


(d)                                a Loan (or part of a Loan) not
being prepaid in accordance with a notice of prepayment given by the Borrower;
or


 


(e)                                 the breach by the Borrower or any
member of the Group of any applicable Environmental Laws or Environmental
Permits.  Any Affiliate of a Finance
Party may rely on this Clause 15.2(e).


 


15.3                          Indemnity to the COFACE Agent


 


The Borrower
shall promptly indemnify the COFACE Agent against any cost, loss or liability
incurred by the COFACE Agent (acting reasonably) as a result of:


 


(a)                                 investigating any event which it
reasonably believes is a Default; or


 


(b)                                acting or relying on any notice,
request or instruction which it reasonably believes to be genuine, correct and
appropriately authorised.


 


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15.4                          Indemnity to the Security Agent


 


(a)                                 The Borrower shall promptly
indemnify the Security Agent against any cost, loss or liability incurred by
the Security Agent as a result of:


 


(i)                                    the protection or enforcement of a
Lien expressed to be created under a Security Document; or


 


(ii)                                 the exercise of any of the rights,
powers, discretions and remedies vested in it by the Finance Documents or by
law.


 


(b)                                The Security Agent may, in
priority to any payment to other Finance Parties, indemnify itself out of the
assets subject to a Lien expressed to be created under the Security Documents
in respect of, and pay and retain, all sums necessary to give effect to the
indemnity in this Clause 15.4.


 


16.                              MITIGATION BY
THE LENDERS


 


16.1                          Mitigation


 


(a)                                 Each Finance Party shall, in
consultation with the Borrower, take all reasonable steps to mitigate any
circumstances which arise and which would result in any amount becoming payable
under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 13 (Tax gross-up
and indemnities), Clause 14 (Increased
costs) or paragraph 3 of Schedule 4
(Mandatory Cost Formula) including (but
not limited to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.


 


(b)                                Paragraph (a) above does
not in any way limit the obligations of the Borrower under the Finance
Documents.


 


16.2                          Limitation of Liability


 


(a)                                 The Borrower shall indemnify each
Finance Party for all costs and expenses reasonably incurred by that Finance
Party as a result of steps taken by it under Clause 16.1 (Mitigation).


 


(b)                                A Finance Party is not obliged to
take any steps under Clause 16.1 (Mitigation) if,
in the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.


 


17.                              COSTS AND
EXPENSES


 


17.1                          Transaction Expenses


 


The Borrower
shall promptly on demand pay the COFACE Agent, the Security Agent and each
Mandated Lead Arranger the amount of all costs and expenses (including legal
fees) reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:


 


(a)                                 this Agreement and any other documents
referred to in this Agreement; and


 


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(b)                                any other Finance Documents
executed after the date of this Agreement.


 


17.2                          Amendment Costs


 


If:


 


(a)                                 the Borrower requests an
amendment, waiver or consent; or


 


(b)                                an amendment is required pursuant
to Clause 31.10 (Change of
Currency),


 


the Borrower
shall, within three (3) Business Days of demand, reimburse the COFACE
Agent and the Security Agent for the amount of all costs and expenses
(including legal fees) incurred by the COFACE Agent and the Security Agent in
responding to, evaluating, negotiating or complying with that request or
requirement.


 


17.3                          Enforcement Costs


 


The Borrower
shall, within three (3) Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) incurred by that
Finance Party in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.


 


17.4                          Security Agent Expenses


 


The Borrower
shall, within three (3) Business Days of demand, pay to the Security Agent
the amount of all costs and expenses (including legal fees) incurred by it in
connection with the release of any Lien created pursuant to any Security
Document.


 


18.                              REPRESENTATIONS


 


Subject to the
disclosures made by the Borrower set out in Schedule 24 (Disclosures),
the Borrower makes the representations and warranties set out in this
Clause 18 (Representations) to each Finance
Party on the date of this Agreement.


 


18.1                          Status


 


(a)                                 It is a corporation, duly
incorporated and validly existing (and to the extent applicable, in good
standing) under the law of its jurisdiction of incorporation.


 


(b)                                It and each of its Subsidiaries
has the power to own its assets and carry on its business as it is being conducted.


 


18.2                          Binding Obligations


 


Subject to the
Reservations:


 


(a)                                 the obligations expressed to be
assumed by it in each Transaction Document to which it is a party are legal,
valid, binding and enforceable obligations; and


 


(b)                                (without limiting the generality
of paragraph (a) above), each Security Document to which it is a
party creates the security interests which that


 


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Security Document purports to create and those
security interests are valid and effective.


 


18.3                          Non-Conflict
with other Obligations


 


The entry into
and performance by it of, and the transactions contemplated by, the Transaction
Documents and the granting of the security interests contemplated by the
Security Documents do not and will not conflict with:


 


(a)                                  any
Applicable Law;


 


(b)                                 the
constitutional documents of any member of the Group; or


 


(c)                                  any
agreement or instrument binding upon it or any member of the Group or any of
its, or any member of the Group’s, assets or constitute a default or
termination event (however described) under any such agreement or instrument,
where such conflict would have or is reasonably likely to have a Material
Adverse Effect.


 


18.4                          Power
and Authority


 


(a)                                  It
has the power to enter into, perform and deliver, and has taken all necessary
action to authorise its entry into, performance and delivery of, the
Transaction Documents to which it is or will be a party and the transactions
contemplated by those Transaction Documents.


 


(b)                                 No
limit on its powers will be exceeded as a result of the borrowing, grant of
security or giving of guarantees or indemnities contemplated by the Transaction
Documents to which it is a party.


 


18.5                          No Proceedings
Pending or Threatened


 


No litigation, arbitration or
administrative proceedings of or before any court, arbitral body or agency
which is not frivolous, vexatious or otherwise an abuse of court process, and
which, if adversely determined, could reasonably have a Material Adverse Effect
(to the best of its knowledge and belief) have been started against it or any
of its Subsidiaries.


 


18.6                          Authorisations


 


(a)                                  Each
of the Borrower and its Subsidiaries has all material Authorisations required:


 


(i)                                     to
enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Transaction Documents to which it is a party; and


 


(ii)                                  to
make the Transaction Documents to which it is a party admissible in evidence in
its jurisdiction of incorporation,


 


have been obtained or effected and are in
full force and effect.


 


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(b)                                 Each
of the Borrower and its Subsidiaries:


 


(i)                                     has
all Authorisations required for it to conduct its business as currently
conducted, each of which is in full force and effect, is final and not subject
to review on appeal and is not the subject of any pending or, to the best of
its knowledge, threatened attack by direct or collateral proceeding;


 


(ii)                                  is
in compliance with each Authorisation applicable to it and in compliance with
all other Applicable Laws relating to it or any of its respective properties;
and


 


(iii)                               has
filed in a timely manner all material reports, documents and other materials
required to be filed by it under all Applicable Laws with any Governmental
Authority and has retained all material records and documents required to be
retained by it under Applicable Law,


 


except in each case where the failure to
have done so, comply or file could not reasonably be expected to have a
Material Adverse Effect.


 


18.7                          Intellectual
Property Matters


 


(a)                                  Each
of the Borrower and its Subsidiaries owns or possesses rights to use all
material franchises, licences, copyrights, copyright applications, patents,
patent rights or licences, patent applications, trademarks, trademark rights,
service marks, service mark rights, trade names, trade name rights, copyrights
and other rights with respect to the foregoing which are reasonably necessary
to conduct its business as currently conducted (the “Intellectual Property”).


 


(b)                                 No
event has occurred which permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such material rights, and,
to the Borrower’s knowledge, neither the Borrower nor any Subsidiary thereof is
liable to any person for infringement under Applicable Law with respect to any
such rights as a result of its business operations except as could not
reasonably be expected to have a Material Adverse Effect.


 


18.8                          Environmental
Matters


 


(a)                                  The
properties owned, leased or operated by the Borrower and its Subsidiaries now
or in the past do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations which:


 


(i)                                     constitute
or constituted an unremediated violation of applicable Environmental Laws and
Environmental Permits; or


 


(ii)                                  could
give rise to a material liability under applicable Environmental Laws and
Environmental Permits.


 


(b)                                 To
the knowledge of the Borrower and its Subsidiaries, the Borrower, each of its
Subsidiaries and such properties and all operations conducted in connection
therewith are in compliance, and, at all such times when such properties have
been owned or operated by the Borrower or any of its Subsidiaries have been 


 


80

















 


in compliance, with all applicable Environmental
Laws and Environmental Permits, and there is no contamination at, under or
about such properties or such operations which could interfere with the
continued operation of such properties or materially impair the fair saleable
value thereof.


 


(c)                                  Neither
the Borrower nor any Subsidiary thereof has received any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding
environmental matters, Hazardous Materials, or compliance with Environmental
Laws and Environmental Permits, nor does the Borrower or any Subsidiary thereof
have knowledge or reason to believe that any such notice will be received or is
being threatened.


 


(d)                                 To
the knowledge of the Borrower and its Subsidiaries, Hazardous Materials have
not been transported or disposed of to or from the properties owned, leased or
operated by the Borrower and its Subsidiaries in violation of, or in a manner
or to a location which could give rise to material liability under,
Environmental Laws and Environmental Permits, nor have any Hazardous Materials
been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could give rise to material
liability under, any applicable Environmental Laws.


 


(e)                                  No
judicial proceedings or governmental or administrative action is pending or, to
the knowledge of the Borrower, threatened under any Environmental Law or
Environmental Permits to which the Borrower or any Subsidiary thereof is or
will be named as a potentially responsible party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Borrower, any Subsidiary or properties
owned, leased or operated by the Borrower or any Subsidiary, now or in the
past, that could reasonably be expected to have a Material Adverse Effect.


 


(f)                                    There
has been no release, nor to the best of the Borrower’s knowledge, threat of
release, of Hazardous Materials at or from properties owned, leased or operated
by the Borrower or any Subsidiary, now or in the past, in violation of or in
amounts or in a manner that could give rise to liability under Environmental
Laws or Environmental Permits that could reasonably be expected to have a
Material Adverse Effect.


 


(g)                                 There
are no facts, circumstances or conditions relating to the past or present
business or operations of the Borrower or any Subsidiary, including the
disposal of any wastes, Hazardous Material or other materials, or to the past
or present ownership or use of any real property by the Borrower or any
Subsidiary, that could reasonably be expected to give rise to an Environmental
Claim against or to liability (other than in an immaterial respect) of any
Borrower or any Subsidiary under any Environmental Laws or Environmental
Permits.


 


18.9                          ERISA


 


(a)                                  As
of the date of this Agreement, neither an Obligor nor any ERISA Affiliate
maintains or contributes to, or has any obligation under, any Employee Benefit


 


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Plans other than those identified in Schedule 9 (ERISA Plans).


 


(b)                                 Each
Employee Benefit Plan is in compliance in form and operation with its terms and
with ERISA and the Code (including Code provisions compliance with which is
necessary for any intended favourable tax treatment) and all other Applicable
laws, except where any failure to comply would not, individually or in the
aggregate, reasonably be expected to result in any material liability of any
Obligor or ERISA Affiliate.


 


(c)                                  Each
Employee Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined by the
Inland Revenue Service to be exempt under Section 501(a) of the Code,
taking into account all applicable tax law changes (or has been submitted, or
is within the remedial amendment period for submitting, an application for such
a determination from the Internal Revenue Service), and nothing has occurred
since the date of each such determination that would reasonably be expected to
adversely affect such determination (or, in the case of a Employee Benefit Plan
with no determination, nothing has occurred that would materially adversely
affect the issuance of a favourable determination by the Internal Revenue
Service or otherwise materially adversely affect such qualification).


 


(d)                                 No
liability has been incurred by any Obligor or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit
Plan or any Multiemployer Plan except for a liability that would not,
individually or in the aggregate, reasonably be expected to result in a
material liability of such Obligor or ERISA Affiliate.


 


(e)                                  Except
where the failure of any of the following representations to be correct in all
material respects would not, individually or in the aggregate, reasonably be
expected to result in a material liability of any Obligor or any ERISA
Affiliate, no Obligor or any ERISA Affiliate has:


 


(i)                                     engaged
in a non-exempt prohibited transaction described in Section 406 of ERISA
or Section 4975 of the Code;


 


(ii)                                  incurred
any liability to the PBGC which remains outstanding, or reasonably expects to
incur any such liability other than the payment of premiums and there are no
premium payments which are within the applicable time limits prescribed by
Applicable Law, due and unpaid;


 


(iii)                               failed
to make a required contribution or payment to a Multiemployer Plan within the
applicable time limits prescribed by Applicable Law; or


 


(iv)                              failed
to make a required instalment or other required payment under Section 412
of the Code or Section 302 of ERISA.


 


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(f)                                    No
ERISA Termination Event, which individually or in the aggregate would
reasonably be expected to result in a material liability of any Obligor or
ERISA Affiliate has occurred or is reasonably expected to occur.


 


(g)                                 Except
where the failure of any of the following representations to be correct in all
material respects would not, individually or in the aggregate, reasonably be
expected to result in a material liability of any Obligor or any ERISA
Affiliate, no proceeding, claim (other than a benefits claim in the ordinary
course), lawsuit and/or investigation is existing or, to the best knowledge of
the Borrower after due inquiry, threatened concerning or involving any:


 


(i)                                     employee
welfare benefit plan (as defined in Section 3(1) of ERISA) currently
maintained or contributed to any Obligor or any ERISA Affiliate;


 


(ii)                                  Pension
Plan; or


 


(iii)                               Multiemployer
Plan.


 


(h)                                 There
exists no Unfunded Pension Liability with respect to any Pension Plan, except
for any such Unfunded Pension Liability that individually or together with any
other positive Unfunded Pension Liabilities with respect to any Pension Plans,
is not reasonably expected to result in a material liability of any Obligor or
ERISA Affiliate.


 


(i)                                     If
each Obligor and each ERISA Affiliate were to withdraw in a complete withdrawal
from all Multiemployer Plans as of the date this assurance is given or deemed given,
the aggregate withdrawal liability that would be incurred would not reasonably
be expected to result in a material liability of any Obligor or ERISA
Affiliate.


 


(j)                                     No
Pension Plan which is subject to Section 412 of the Code or Section 302
of ERISA has applied for or received an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304
of ERISA.  No Obligor or ERISA Affiliate
has ceased operations at a facility so as to become subject to the provisions of
Section 4068(a) of ERISA, withdrawn as a substantial employer so as
to become subject to the provisions of Section 4063 of ERISA or ceased
making contributions to any Pension Plan subject to Section 4064(a) of
ERISA to which it made contributions.  No
Lien imposed under the Code or ERISA on the assets of any Obligor or any ERISA
Affiliate exists or is likely to arise on account of any Pension Plan.  No Obligor or ERISA Affiliate has any
liability under Section 4069 or 4212(c) of ERISA.


 


18.10                    Margin
Stock


 


(a)                                  Neither
the Borrower nor any Subsidiary of it is engaged principally or as one of its
activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used,
directly or indirectly, in Regulation U of the Board of Governors of the
Federal Reserve System).


 


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(b)                                 No
part of the proceeds of the Loans will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of Governors.


 


18.11                    Government
Regulation


 


Neither the Borrower nor any Subsidiary is
an “investment company” or a company “controlled” by an “investment company”
(as each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary is, or after giving effect
to any Utilisation will be, subject to regulation under the Interstate Commerce
Act, as amended, or any other Applicable Law which limits its ability to incur
or consummate the transactions contemplated under this Agreement.


 


18.12                    Material
Contracts


 


(a)                                  Schedule
12 (Material Contracts) contains a complete
and accurate list of all Material Contracts of the Borrower and its
Subsidiaries in effect as of the date of this Agreement.


 


(b)                                 Other
than as set out in Schedule 12 (Material Contracts),
each such Material Contract is, and after giving effect to the consummation of
the transactions contemplated by the Finance Documents will be, in full force
and effect in accordance with the terms thereof.


 


(c)                                  The
Borrower and its Subsidiaries have delivered to the COFACE Agent a true and
complete copy of each Material Contract required to be listed on Schedule 12 (Material Contracts) (including all amendments with respect
thereto).


 


(d)                                 Neither
the Borrower nor any Subsidiary (nor, to the knowledge of the Borrower, any
other party thereto) is in breach of or in default under any Material Contract
in any material respect.


 


18.13                    Employee
Relations


 


(a)                                  Each
of the Borrower and its Subsidiaries has a work force in place adequate to
conduct its business as currently conducted and is not, as of the date of this
Agreement, party to any collective bargaining agreement nor has any labour
union been recognised as the representative of its employees except as set out
in Schedule 13 (Labour and Collective Bargaining
Agreements).


 


(b)                                 The
Borrower knows of no pending, threatened or contemplated strikes, work stoppage or
other collective labour disputes involving its employees or those of its
Subsidiaries that could reasonably be expected to have a Material Adverse
Effect.


 


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18.14                    Burdensome
Provisions


 


No Subsidiary is party to any agreement or
instrument or otherwise subject to any restriction or encumbrance that
restricts or limits its ability to make dividend payments or other
distributions in respect of its Capital Stock to the Borrower or any Subsidiary
or to transfer any of its assets or properties to the Borrower or any other
Subsidiary in each case other than existing under or by reason of the Finance
Documents or Applicable Law.


 


18.15                    Financial
Statements


 


(a)                                  The
audited and unaudited financial statements delivered pursuant to Schedule 2 (Conditions Precedent) are complete and correct and fairly
present in all material respects on a Consolidated basis the assets,
liabilities and financial position of the Borrower and its Subsidiaries as at
such dates, and the results of the operations and changes of financial position
for the periods that ended (other than the absence of footnotes and customary
year-end adjustments for unaudited financial statements).


 


(b)                                 All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP.


 


(c)                                  Such
financial statements show all material indebtedness and other material
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the dates thereof, including material liabilities for taxes, material
commitments, and Financial Indebtedness, in each case, to the extent required
to be disclosed under GAAP.


 


18.16                    No
Material Adverse Change


 


Since 11 May 2009, there has been
no material adverse change in the properties, business, operations, prospects
or condition (financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole and no event has occurred or condition arisen that could
reasonably be expected to have a Material Adverse Effect.


 


18.17                    Solvency


 


As of the date of this Agreement and after
giving effect to each Loan, each Obligor will be Solvent.


 


18.18                    Titles
to Properties


 


Each of the Borrower and its Subsidiaries
has such title to the real property owned or leased by it as necessary to the
conduct of its business as currently conducted and valid and legal title to all
of its personal property and assets, including, but not limited to, those
reflected on the Consolidated balance sheets of the Borrower and its
Subsidiaries delivered pursuant to Schedule 2 (Conditions
Precedent), except those which have been disposed of by the Borrower
or its Subsidiaries subsequent to the dates of such balance sheets which
dispositions have been in the ordinary course of trading or as otherwise
expressly permitted under this Agreement.


 


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18.19                    Insurance


 


The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as required by this Agreement.


 


18.20                    Liens


 


From Financial
Close,


 


(a)                                  none
of the properties and assets of the Borrower or any Subsidiary thereof is
subject to any Lien, except Permitted Liens; and


 


(b)                                 neither
the Borrower nor any Subsidiary thereof has signed any financing statement or
any security agreement authorising any secured party thereunder to file any
financing statements, except to perfect Permitted Liens.


 


18.21                    Financial
Indebtedness and Guarantee Obligations


 


(a)                                  Schedule
14 (Financial Indebtedness and Guarantee Obligations) is
a complete and correct listing of all Financial Indebtedness and Guarantee
Obligations of the Borrower and its Subsidiaries as of the date of this
Agreement in excess of one million Dollars (US$1,000,000).


 


(b)                                 As
of the date of this Agreement, the amount of all Financial Indebtedness and
Guarantee Obligations of the Borrower and its Subsidiaries (and not set out in
Schedule 14 (Financial Indebtedness and Guarantee Obligations))
is no greater than one million Dollars (US$1,000,000).


 


(c)                                  The
Borrower and its Subsidiaries have performed and are in compliance with all of
the material terms of such Financial Indebtedness and Guarantee Obligations and
all instruments and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of the Borrower or
any of its Subsidiaries exists with respect to any such Financial Indebtedness
or Guarantee Obligations.


 


18.22                    Communication
Licences


 


(a)                                  Schedule
15 (Communication Licences) accurately and
completely lists, as of the date of this Agreement, for the Borrower and each
of its Subsidiaries, all Material Communications Licences (and the expiration
dates thereof) granted or assigned to the Borrower or any Subsidiary,
including, without limitation for:


 


(i)                                     each
Satellite owned by the Borrower or any of its Subsidiaries, all space station
licences or authorisations, including placement on the FCC’s “Permitted Space Station List” for operation of Satellites
with C-band links issued or granted by the FCC to the Borrower or any of its
Subsidiaries; and


 


(ii)                                  for
each Earth Station of the Borrower and its Subsidiaries.


 


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(b)                                 The
Communications Licences set out in Schedule 15 (Communication
Licences) include all material authorisations, licences and permits
issued by the FCC or any other Governmental Authority that are required or
necessary for the operation and the conduct of the business of the Borrower and
its Subsidiaries, as now conducted.  Each
Communications Licence is expected to be renewed and the Borrower knows of no
reason why such Communications Licence would not be renewed.  The Borrower and its Subsidiaries have filed
all material applications with the FCC necessary for the Launch and operation
of the Borrower’s second-generation satellite constellation and the Borrower is
not aware of any reason why such applications should not be granted.


 


(c)                                  Each
Communications Licence set out in Schedule 15 (Communication
Licences) is issued in the name of the Subsidiary indicated on such
schedule.


 


(d)                                 Each
Material Communications Licence is in full force and effect.


 


(e)                                  The
Borrower has no knowledge of any condition imposed by the FCC or any other
Governmental Authority as part of any Communications Licence which is neither
set forth on the face thereof as issued by the FCC or any other Governmental
Authority nor contained in the rules and regulations of the FCC or any
other Governmental Authority applicable generally to telecommunications
activities of the type, nature, class or location of the activities in
question.


 


(f)                                    Each
applicable location of the Borrower or any of its Subsidiaries has been and is
being operated in all material respects in accordance with the terms and
conditions of the Communications Licence applicable to it and Applicable Law,
including but not limited to the Communications Act and the rules and
regulations issues thereunder.


 


(g)                                 No
proceedings are pending or, to the Borrower’s knowledge are, threatened which
may result in the loss, revocation, modification, non-renewal, suspension or
termination of any Communications Licence, the issuance of any cease and desist
order or the imposition of any fines, forfeitures or other administrative
actions by the FCC or any other Governmental Authority with respect to any
operations of the Borrower and its Subsidiaries, which in any case could
reasonably be expected to have a Material Adverse Effect.


 


18.23                    Satellites


 


(a)                                  All
Satellites are owned by the Borrower or a Subsidiary that is an Obligor.


 


(b)                                 Schedule
16 (Satellites) accurately and completely
lists as of the date of this Agreement, the flight model number of each of the
Satellites owned by the Borrower and its Subsidiaries, and for each Satellite
whether it is operational in-orbit or spare in-orbit.


 


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18.24                    Delay
in Construction / Launch Slot


 


As of the date
of this Agreement, the Borrower is not aware:


 


(a)                                  of
any delay which has a duration exceeding three (3) Months, to the
construction and scheduled delivery dates of the Satellites under the Satellite
Construction Contract (as delivered pursuant to Schedule 2 (Conditions Precedent)); and


 


(b)                                 of
any event which could reasonably be expected to result in the last Launch
occurring later than the fourth fiscal quarter of 2010.


 


18.25                    Pari
Passu Ranking


 


Each Obligor’s payment obligations under
the Finance Documents rank at least pari passu with
the claims of all its unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.


 


18.26                    OFAC


 


(a)                                  None
of the Borrower, any Subsidiary of the Borrower or any Affiliate of the
Borrower:


 


(i)                                     is a
Sanctioned Person;


 


(ii)                                  has
more than ten per cent.
(10%) of its assets in Sanctioned Entities; or


 


(iii)                               derives
more than ten per cent.
(10%) of its operating income from investments in, or transactions with
Sanctioned Persons or Sanctioned Entities.


 


(b)                                 The
proceeds of any Loan will not be used and have not been used to fund any
operations in, finance any investments or activities in, or make any payments
to, a Sanctioned Person or a Sanctioned Entity.


 


18.27                    Governing
Law and Enforcement


 


(a)                                  Subject
to the Reservations, the choice of governing law of the Finance Documents will
be recognised and enforced in its jurisdiction of incorporation.


 


(b)                                 Subject
to the Reservations, any judgment obtained in relation to a Finance Document in
the jurisdiction of the governing law of that Finance Document will be
recognised and enforced in its jurisdiction of incorporation.


 


18.28                    No
Filing or Stamp Taxes


 


Under:


 


(a)                                  the
laws of the Borrower’s or any of its Subsidiaries jurisdiction of
incorporation; and


 


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(b)                                 the
federal laws of the United States,


 


it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority in
that jurisdiction or that any stamp, registration, notarial or similar Taxes or
fees be paid on or in relation to the Finance Documents or the transactions
contemplated by the Finance Documents other than:


 


(i)                                    delivery
of proper financing statements (Form UCC-1 or such other financing
statements or similar notices as shall be required by Applicable Law) fully
executed for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary to perfect a Lien purported to be created by a
Security Document; and


 


(ii)                                 any
recording with the United States Patent and Trademark Office and/or
Copyright Office to perfect the Liens on intellectual property created by the
Collateral Agreement,


 


which registrations, filings and fees will
be made and paid promptly after the date of the relevant Finance Document.


 


18.29                    Deduction
of Tax


 


It is not required to make any deduction
for or on account of Tax from any payment it may make under any Finance
Document.


 


18.30                    No
Default


 


(a)                                  No
Event of Default and, on the date of this Agreement, no Default is continuing
or is reasonably likely to result from the making of any Loan or the entry
into, the performance of, or any transaction contemplated by, any Transaction
Document.


 


(b)                                 No
other event or circumstance is outstanding which constitutes (or, with the
expiry of a grace period, the giving of notice, the making of any determination
or any combination of any of the foregoing, would constitute) a default or
termination event (however described) under the Transaction Documents, which
has not been waived by the relevant parties hereto.


 


(c)                                  No other
event or circumstance is outstanding which constitutes (or, with the expiry of
a grace period, the giving of notice, the making of any determination or any
combination of any of the foregoing, would constitute) a default or termination
event (however described) under any other agreement or instrument which is
binding on it or any of its Subsidiaries or to which its (or any of its
Subsidiaries) assets are subject which has or is reasonably likely to have a
Material Adverse Effect.


 


18.31                   No
Misleading Information


 


(a)                                  All
factual information provided in writing by it to the Lenders was true, complete
and accurate in all material respects to the best of its knowledge and belief
as at the date it was provided or as at the date (if any) at which it is stated.


 


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(b)                                 All
financial projections provided by it have been prepared on the basis of recent
historical information and on the basis of reasonable assumptions (in the case
of projections made by third parties, to the best of its knowledge and belief).


 


(c)                                  To
the best of its knowledge and belief, no material information has been given or
withheld by it that results in any information provided to the Lenders by it
being incomplete, untrue or misleading in any material respect.


 


18.32                    Group
Structure Chart


 


The Group Structure Chart set out at Schedule 23 (Group
Structure Chart) is
true, complete and accurate in all material respects.


 


18.33                    No
Immunity


 


None of the members of the Group nor any of
its or their assets is entitled to immunity from suit, execution, attachment or
other legal process.


 


18.34                    Tax
Returns and Payments


 


(a)                                 Each
of the Borrower and its Subsidiaries has timely filed with the appropriate
taxing authority, all returns, statements, forms and reports for taxes (the “Returns”) required to be filed by or with
respect to the income, properties or operations of the Borrower and/or any of
its Subsidiaries.


 


(b)                                The
Returns accurately reflect in all material respects all liability for taxes of the
Borrower and its Subsidiaries as a whole for the periods covered thereby.


 


(c)                                 The
Borrower and each of its Subsidiaries have paid all taxes payable by them other
than those contested in good faith and adequately disclosed and for which
adequate reserves have been established in accordance with generally accepted
accounting principles.


 


(d)                                There
is no action, suit, proceeding, investigation, audit, or claim now pending or,
to the best knowledge of the Borrower or any of its Subsidiaries, threatened by
any authority regarding any taxes relating to the Borrower or any of its
Subsidiaries which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.


 


(e)                                 Neither
the Borrower nor any of its Subsidiaries has entered into an agreement or
waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of the
Borrower or any of its Subsidiaries, or is aware of any circumstances that
would cause the taxable years or other taxable periods of the Borrower or any
of its Subsidiaries not to be subject to the normally applicable statute of
limitations.


 


18.35                    Commercial
Contracts


 


As of
the date of this Agreement, the Borrower has not exercised:


 


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(a)                                 the
option to order from the Supplier up to eighteen (18) additional recurring
Spacecraft (as such term is defined in the Satellite Construction Contract)
pursuant to Article 29(B) (Options)
of the Satellite Construction Contract; or


 


(b)                                the
Optional Launches (as such term is defined in the Launch Services Contract)
pursuant to the Launch Services Contract.


 


18.36                    Repetition


 


The Repeating Representations are made by
the Borrower by reference to the facts and circumstances then existing on:


 


(a)                                 the
date of each Utilisation Request;


 


(b)                                each
Utilisation Date; and


 


(c)                                 the
first day of each Interest Period.


 


19.                              INFORMATION UNDERTAKINGS


 


The undertakings in this Clause 19 (Information Undertakings) remain in force from the date of
this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force. 
The Borrower will furnish, or cause to be furnished, to the COFACE Agent
the information required by this Clause 19 (Information
Undertakings) in sufficient copies for all the Lenders.


 


19.1                          Quarterly
Financial Statements


 


As soon as practicable and in any event
within forty five (45) days after the end of each of the first three (3) fiscal
quarters of each Fiscal Year (and in the case of paragraph (e) only,
after the end of each fiscal quarter of each Fiscal Year) (or, if the date of
any required public filing is earlier, no later than the date that is the fifth
Business Day immediately following the date of any required public filing
thereof after giving effect to any extensions granted with respect to such
date):


 


(a)                                 Form 10-Q;


 


(b)                                an
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of
the close of such fiscal quarter;


 


(c)                                 the
notes (if any) relating to any of the financial statements delivered under this
Clause 19.1;


 


(d)                                unaudited
Consolidated statements of income, retained earnings and cash flows;


 


(e)                                 a
report with respect to the Borrower’s key performance indicators in
substantially the same form as Schedule 19 (Key Performance Indicators);
and


 


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(f)                                   a
report containing management’s discussion and analysis of such financial
statements for the fiscal quarter then ended and that portion of the Fiscal
Year then ended,


 


all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the
corresponding period in the preceding Fiscal Year and prepared by the Borrower
in accordance with GAAP and, if applicable, containing disclosure of the effect
on the financial position or results of operations of any change in the
application of accounting principles and practices during the period, and
certified by the chief financial officer of the Borrower to present fairly in
all material respects the financial condition of the Borrower and its
Subsidiaries on a Consolidated basis as of their respective dates and the
results of operations of the Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments.


 


19.2                          Annual
Financial Statements


 


(a)                                  As
soon as practicable and in any event within ninety (90) days after the end
of each Fiscal Year (or, if the date of any required public filing is earlier,
the date that is no later than the fifth Business Day immediately following the
date of any required public filing thereof after giving effect to any
extensions granted with respect to such date):


 


(i)                                    Form 10-K;


 


(ii)                                 an
audited Consolidated balance sheet of the Borrower and its Subsidiaries as of
the close of such Fiscal Year;


 


(iii)                              the
notes (if any) relating to any of the financial statements delivered under this
Clause 19.2;


 


(iv)                             audited
Consolidated statements of income, retained earnings and cash flows; and


 


(v)                                a report
containing management’s discussion and analysis of such financial statements
for the Fiscal Year then ended,


 


all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the
preceding Fiscal Year and prepared in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the year.


 


(b)                                 Such
annual financial statements shall be audited by the independent certified
public accounting firm separately notified to the COFACE Agent prior to the
date of this Agreement or such other firm notified to the COFACE Agent (and
acceptable to the COFACE Agent), and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by the Borrower or any of its Subsidiaries or with respect
to accounting principles followed by the Borrower or any of its Subsidiaries
not in accordance with GAAP.


 


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19.3                          Annual
Business Plan and Financial Projections


 


As soon as practicable and in any event
within fifteen (15) days after the beginning of each Fiscal Year during
the term of this Agreement, a business plan of the Borrower and its
Subsidiaries for the ensuing four (4) fiscal quarters, such plan to be
prepared in accordance with GAAP and to include, on a quarterly basis, the
following:


 


(a)                                  information
relating to the amounts outstanding under the Convertible Notes;


 


(b)                                 an
operating and capital budget in respect of the next three (3) succeeding
Fiscal Years;


 


(c)                                  a
projected income statement;


 


(d)                                 a
statement of cash flows on a three (3) year projected basis (including,
calculations (in reasonable detail) demonstrating compliance with each of the
financial covenants set out in Clause 20 (Financial
Covenants)) and balance sheet; and


 


(e)                                  a
report setting forth management’s operating and financial assumptions
underlying such projections,


 


accompanied by a certificate from a
Responsible Officer of the Borrower to the effect that, to the best of such
officer’s knowledge, such projections are estimates made in good faith (based
on reasonable assumptions) of the financial condition and operations of the
Borrower and its Subsidiaries for such four (4) fiscal quarter period and
in relation to the operating and capital budget, in respect of the next three (3) succeeding
Fiscal Years.


 


19.4                          Compliance
Certificate


 


At each time:


 


(a)                                  financial
statements are delivered pursuant to Clause 19.1 (Quarterly
Financial Statements) or Clause 19.2 (Annual
Financial Statements);


 


(b)                                 the
information and other documentation is delivered pursuant to Clause 19.3 (Annual Business Plan and Financial Projections); and


 


(c)                                  at
such other times as the COFACE Agent shall reasonably request,


 


a Compliance Certificate signed by a
Responsible Officer, confirming compliance by the Borrower with each of the
financial covenants set out in Clause 20 (Financial
Covenants) together with an Adjusted Consolidated EBITDA
Reconciliation for the fiscal period covered by such financial statements or
information (as the case may be).


 


19.5                          Other
Reports


 


(a)                                  Upon
request by the COFACE Agent, copies of all relevant public documents required
by its independent public accountants in connection with their auditing
function, including, without limitation, any management report and any
management responses thereto.


 


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(b)                                 No
less than annually, and at any time upon the reasonable request of the COFACE
Agent, a Satellite health report prepared by the Borrower and certified by a
Responsible Officer setting forth the operational status of each Satellite
(other than Satellites yet to be launched) based on reasonable assumptions of
the Borrower made in good faith and including such information with respect to
the projected solar array life based on the total Satellite power requirements,
projected battery life based on total Satellite power requirements, projected
Satellite life, information concerning the availability of spare Satellites and
such other information pertinent to the operation of such Satellite as the
COFACE Agent may reasonably request, it being understood that to the extent
that any such Satellite health report contains any forward looking statements,
estimates or projections, such statements, estimates or projections are subject
to significant uncertainties and contingencies, many of which are beyond the
Borrower’s control, and no assurance can be given that such forward looking
statements, estimates or projections will be realised, provided
that nothing in this paragraph (b) shall require the
Borrower to delivery any information to any Lender to the extent delivery of
such information is restricted by applicable law or regulation.


 


(c)                                  No
less than quarterly, a Satellite health report prepared by the Borrower and
certified by a Responsible Officer including the following:


 


(i)                                    details
of the operational status of each Satellite (other than Satellites yet to be
launched) based on reasonable assumptions of the Borrower made in good faith
and in substantially the same form contained in Schedule 30 (Form of Quarterly Health Report); and


 


(ii)                                 a
letter providing details of any material or unusual events that have occurred
with respect to the Satellites since the delivery to the COFACE Agent of the
last quarterly report.


 


(d)                                 Such
other information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries as the COFACE Agent or any
Lender may reasonably request.


 


19.6                          Notice
of Litigation and Other Matters


 


Promptly (but in no event later than ten (10) Business
Days after any Responsible Officer of the Borrower obtains knowledge thereof)
written notice of:


 


(a)                                  all
documents dispatched by the Borrower to all of its stockholders (or any class
thereof) or its creditors generally at the same time as they are dispatched;


 


(b)                                 the
commencement of all proceedings and investigations by or before any
Governmental Authority and all actions and proceedings in any court or before
any arbitrator against or involving the Borrower or any Subsidiary thereof or
any of their respective properties, assets or businesses that if adversely
determined could reasonably be expected to result in a Material Adverse Effect;


 


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(c)                                  any
notice of any violation received by the Borrower or any Subsidiary thereof from
any Governmental Authority including, without limitation:


 


(i)                                    any
notice of violation of any Environmental Law and the details of any
environmental claim, litigation, arbitration or administrative proceedings
which are current, threatened or pending against any member of the Group; and


 


(ii)                                 any
other notice of violation which in each case could reasonably be expected to
have a Material Adverse Effect;


 


(d)                                 any
labour controversy that has resulted in a strike or other work action against
the Borrower or any Subsidiary thereof which in each case could reasonably be
expected to have a Material Adverse Effect;


 


(e)                                  any
attachment, judgment, lien, levy or order exceeding one million Dollars
(US$1,000,000) that has been assessed against the Borrower or any Subsidiary
thereof;


 


(f)                                    any
claim for force majeure (howsoever described) by a
party under a Commercial Contract;


 


(g)                                 details
of:


 


(i)                                    any
delay which has a duration exceeding three (3) Months, to the construction
and scheduled delivery dates of the Satellites under the Satellite Construction
Contract (as delivered pursuant to Schedule 2 (Conditions Precedent));


 


(ii)                                 any
event which could reasonably be expected to result in the last Launch occurring
later than the fourth fiscal quarter of 2010; and


 


(iii)                              suspension,
interruption, cancellation or termination of a Commercial Contract;


 


(h)                                 any
amendments or modifications to a Commercial Contract, together with a copy of
such amendment;


 


(i)                                     any
Default or Event of Default;


 


(j)                                    any
event which constitutes or which with the passage of time or giving of notice or
both would constitute a default or event of default under any Material Contract
to which the Borrower or any of its Subsidiaries is a party or by which the
Borrower or any Subsidiary thereof or any of their respective properties may be
bound which could reasonably be expected to have a Material Adverse Effect;


 


(k)                                 any
unfavourable determination letter from the US Internal Revenue Service
regarding the qualification of an Employee Benefit Plan under Section 401(a) of
the Code (along with a copy thereof);


 


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(l)                                    a
copy of each Internal Revenue Service Form 5500 (including the
Schedule B or such other schedule as contains actuarial information) filed
in respect of a Pension Plan with Unfunded Pension Liabilities;


 


(m)                              any
Obligor or ERISA Affiliate obtaining knowledge or a reason to know that any
ERISA Termination Event has occurred or is reasonably expected to occur, a
certificate of any Responsible Officer of the Borrower describing such ERISA
Termination Event and the action, if any, proposed to be taken with respect to
such ERISA Termination Event and a copy of any notice filed with the PBGC or
the Internal Revenue Service pertaining to such ERISA termination Event and any
notices received by such Obligor or ERISA Affiliate from the PBGC, any other
governmental agency or any Multiemployer Plan sponsor with respect thereto;
provided that in the case of ERISA Termination Events under paragraph (c) of
the definition thereof, in no event shall notice be given later than the
occurrence of the ERISA Termination Event;


 


(n)                                any
Obligor or ERISA Affiliate obtaining knowledge or a reason to know of:


 


(i)                                    a
material increase in Unfunded Pension Liabilities (taking into account only
Pension Plans with positive Unfunded Pension Liabilities) since the date the
representations hereunder are given or deemed given, or from any prior notice,
as applicable;


 


(ii)                                 the
existence of potential withdrawal liability under Section 4201 of ERISA,
if each Obligor and ERISA Affiliate were to withdraw completely from any and
all Multiemployer Plans;


 


(iii)                              the
adoption of, or the commencement of contributions to, any Pension Plan or
Multiemployer Plan by any Obligor or ERISA Affiliate, or


 


(iv)                             the
adoption or amendment of any Pension Plan which results in a material increase
in contribution obligations of any Obligor or any ERISA Affiliate, a detailed
written description thereof from any Responsible Officer of the Borrower; and


 


(o)                                 if,
at any time after the date of this Agreement, any Obligor or any ERISA
Affiliate maintains, or contributes to (or incurs an obligation to contribute
to), an Employee Benefit Plan or Multiemployer Plan which is not set forth in
Schedule 9 (ERISA Plans), then the
Borrower shall deliver to the COFACE Agent an updated Schedule 9 as soon as
practicable, and in any event within ten (10) days after such Obligor or
ERISA Affiliate maintains or contributes (or incurs an obligation to
contribute) thereto.


 


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19.7                          Notices
Concerning Communications Licences


 


Promptly (but in no event later than ten (10) Business
Days after any Responsible Officer of the Borrower obtains knowledge thereof)
written notice of:


 


(a)                                 (i) any
citation, notice of violation or order to show cause issued by the FCC or any
Governmental Authority with respect to any Material Communications Licence; (ii) if
applicable, a copy of any notice or application by the Borrower requesting
authority to or notifying the FCC of its intent to cease telecommunications
operations for any period in excess of ten (10) days; or (iii) notice
of any other action, proceeding or other dispute, which, if adversely
determined, could reasonably be expected to result in the loss or revocation of
any Material Communications Licence; and


 


(b)                                any
lapse, loss, modification, suspension, termination or relinquishment of any
Material Communications Licence, permit or other authorisation from the FCC or
other Governmental Authority held by the Borrower or any Subsidiary thereof or
any failure of the FCC or other Governmental Authority to renew or extend any
such Material Communications Licence, permit or other authorisation for the
usual period thereof and of any complaint against the Borrower or any of its
Subsidiaries or other matter filed with or communicated to the FCC or other
Governmental Authority.


 


19.8                          Convertible
Notes


 


The Borrower shall:


 


(a)                                  provide
to the COFACE Agent upon its request information relating to the amounts
outstanding under the Convertible Notes; and


 


(b)                                 promptly
on request, supply to the COFACE Agent such further information regarding the
Convertible Notes as any Finance Party through the COFACE Agent may reasonably
request.


 


19.9                          Final
In-Orbit Acceptance


 


The Borrower shall:


 


(a)                                  provide
to the COFACE Agent a certificate signed
by a Responsible Officer confirming that Final In-Orbit Acceptance has occurred
(such certificate to be in form and substance satisfactory to the COFACE Agent)
within five (5) Business Days following Final In-Orbit Acceptance; and


 


(b)                                 promptly
on request, supply to the COFACE Agent such further information regarding Final
In-Orbit Acceptance as any Finance Party through the COFACE Agent may
reasonably request.


 


19.10                    Individual
In-Orbit Acceptance


 


The Borrower shall provide to the COFACE
Agent a certificate signed by a
Responsible Officer confirming that, in respect of the relevant Satellite:


 


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(a)                                 the
testing of such Satellite has been completed and the Satellite Performance
Criteria has been successfully met in respect of the relevant Satellite,
promptly after the completion of such tests; and


 


(b)                                 Individual In-Orbit Acceptance
has occurred not later than five (5) days after achieving Individual
In-Orbit Acceptance.


 


19.11                    Equity
Cure Contribution


 


The
Borrower shall promptly inform the COFACE Agent when an Equity Cure
Contribution is to be made (including the details of any Equity Issuance or
Subordinated Indebtedness being applied for such purpose).


 


19.12                    Use
of Websites


 


(a)                                 The Borrower
may satisfy its obligation under this Agreement to deliver any information in
relation to those Lenders ( the “Website
Lenders”) who accept this method of communication by posting this
information onto an electronic website designated by the Borrower and the
COFACE Agent (the “Designated Website”)
if:


 


(i)                                    the
COFACE Agent expressly agrees (after consultation with each of the Lenders)
that it will accept communication of the information by this method;


 


(ii)                                 both
the Borrower and the COFACE Agent are aware of the address of and any relevant
password specifications for the Designated Website; and


 


(iii)                              the
information is in a format previously agreed between the Borrower and the
COFACE Agent.


 


If any Lender (a “Paper Form Lender”)
does not agree to the delivery of information electronically then the COFACE
Agent shall notify the Borrower accordingly and the Borrower shall supply the
information to the COFACE Agent (in sufficient copies for each Paper Form Lender)
in paper form.  In any event the Borrower
shall supply the COFACE Agent with at least one (1) copy in paper
form of any information required to be provided by it.


 


(b)                                The
COFACE Agent shall supply each Website Lender with the address of and any
relevant password specifications for the Designated Website following
designation of that website by the Borrower and the COFACE Agent.


 


(c)                                 The
Borrower shall promptly upon becoming aware of its occurrence notify the COFACE
Agent if:


 


(i)                                     the
Designated Website cannot be accessed due to technical failure;


 


(ii)                                  the
password specifications for the Designated Website change;


 


98
















 


(iii)          any
new information which is required to be provided under this Agreement is posted
onto the Designated Website;


 


(iv)          any
existing information which has been provided under this Agreement and posted
onto the Designated Website is amended; or


 


(v)           the
Borrower becomes aware that the Designated Website or any information posted
onto the Designated Website is or has been infected by any electronic virus or
similar software.


 


If the
Borrower notifies the COFACE Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information
to be provided by the Borrower under this Agreement after the date of that
notice shall be supplied in paper form unless and until the COFACE Agent and
each Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.


 


(d)           Any
Website Lender may request, through the COFACE Agent, one (1) paper
copy of any information required to be provided under this Agreement which is
posted onto the Designated Website.  The
Borrower shall comply with any such request within ten (10) Business Days.


 


19.13       “Know your Customer” Checks


 


(a)           If:


 


(i)            the
introduction of or any change in (or in the interpretation, administration or
application of) any Applicable Law made after the date of this Agreement;


 


(ii)           any
change in the status of any Obligor after the date of this Agreement; or


 


(iii)          a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,


 


obliges the
COFACE Agent or any Lender (or, in the case of paragraph (iii) above,
any prospective new Lender) to comply with “know your customer”
or similar identification procedures in circumstances where the necessary
information is not already available to it, the Borrower shall procure that
each Obligor shall promptly upon the request of the COFACE Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the COFACE Agent (for itself or on behalf of any
Lender) or any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender) in
order for the COFACE Agent, such Lender or, in the case of the event described
in paragraph (iii) above, any prospective new Lender to carry out and
be satisfied it has complied with all necessary “know your
customer” or other similar checks under all Applicable Laws pursuant
to the transactions contemplated in the Finance Documents.


 


99

















 


(b)           Each
Lender shall promptly upon the request of the COFACE Agent supply, or procure
the supply of, such documentation and other evidence as is reasonably requested
by the COFACE Agent (for itself) in order for the COFACE Agent to carry out and
be satisfied it has complied with all necessary “know your
customer” or other similar checks under all Applicable Laws pursuant
to the transactions contemplated in the Finance Documents.


 


19.14       Last
Launch


 


The Borrower
shall:


 


(a)           provide
to the COFACE Agent a certificate signed
by a Responsible Officer confirming the date on which the last Launch has
occurred (such certificate to be in form and substance satisfactory to the
COFACE Agent) within five (5) Business Days following last Launch; and


 


(b)           promptly
on request, supply to the COFACE Agent such further information regarding last
Launch as any Finance Party through the COFACE Agent may reasonably request.


 


20.          FINANCIAL COVENANTS


 


20.1         Maximum Covenant
Capital Expenditures


 


The Borrower
and its Subsidiaries on a Consolidated basis will not permit the aggregate
amount of all Covenant Capital Expenditures to exceed the amount agreed between
the Borrower and the COFACE Agent set forth below in the following Fiscal
Years:


 


	
  2009

  	
   

  	
  US$391,000,000

  	
   

  
	
  2010

  	
   

  	
  US$234,000,000

  	
   

  



 


provided
that,  if in any Fiscal Year the Covenant Capital Expenditures
referred to above are not met, any excess amounts may be credited to permitted
Covenant Capital Expenditures for the next Fiscal Year.


 


20.2         Minimum Liquidity


 


Following the
Contingent Equity Release Date, maintain a minimum Liquidity of five million
Dollars (US$5,000,000).


 


20.3         Adjusted
Consolidated EBITDA


 


The Borrower
shall ensure that the Adjusted Consolidated EBITDA in respect of any Relevant
Period (including (without double-counting) in the calculation of Adjusted
Consolidated EBITDA any Equity Cure Contribution made during such period and
the amount of any prior Equity Cure Contribution that has not been required to
be counted in the calculation of Adjusted Consolidated EBITDA to enable the
Borrower to achieve the amount set out in column 2 (Column 2 —
Amount) for any prior Relevant Period, provided
that no part of any Equity Cure Contribution may be included in the
calculation of the Adjusted Consolidated EBITDA in any subsequent 


 


100

















 


Relevant
Period if the proceeds of such Equity Cure Contribution has been so taken into
account in any such calculation for any two (2) prior Relevant Periods)
specified in column 1 (Column 1 — Relevant
Period) below shall not be less than the amount set out in
column 2 (Column 2 — Amount) below
opposite that Relevant Period.


 


	
  Column 1
  - Relevant Period

  	
   

  	
  Column 2 – Amount

  	
   

  
	
  Relevant Period
  commencing on 1 January 2009 and expiring
  31 December 2009.

  	
   

  	
  US$

  	
  (25,000,000

  	
  )

  
	
  Relevant Period
  commencing on 1 July 2009 and expiring 30 June 2010.

  	
   

  	
  US$

  	
  (21,000,000

  	
  )

  
	
  Relevant Period
  commencing on 1 January 2010 and expiring
  31 December 2010.

  	
   

  	
  US$

  	
  (10,000,000

  	
  )

  
	
  Relevant Period
  commencing on 1 July 2010 and expiring 30 June 2011.

  	
   

  	
  US$

  	
  10,000,000

  	
   

  
	
  Relevant Period
  commencing on 1 January 2011 and expiring
  31 December 2011.

  	
   

  	
  US$

  	
  25,000,000

  	
   

  
	
  Relevant Period
  commencing on 1 July 2011 and expiring 30 June 2012.

  	
   

  	
  US$

  	
  35,000,000

  	
   

  
	
  Relevant Period
  commencing on 1 January 2012 and expiring
  31 December 2012.

  	
   

  	
  US$

  	
  55,000,000

  	
   

  
	
  Relevant Period
  commencing on 1 July 2012 and expiring 30 June 2013.

  	
   

  	
  US$

  	
  65,000,000

  	
   

  
	
  Relevant Period
  commencing on 1 January 2013 and expiring 31 December 2013.

  	
   

  	
  US$

  	
  78,000,000

  	
   

  



 


20.4         Debt Service
Coverage Ratio


 


The Borrower
shall ensure that the Debt Service Coverage Ratio in respect of any Relevant
Period (including (without double-counting) any Equity Cure Contribution made
in accordance with Clause 23.2(c) (Financial Covenants)
provided that any Equity Cure
Contribution shall only be counted in the calculation of Liquidity for such
purpose) specified in column 1 (Column 1 — Relevant
Period) below shall not be less than the ratio set out in column 2
(Column 2 — Ratio) below opposite
that Relevant Period.


 


	
  Column 1
  - Relevant Period

  	
   

  	
  Column 2 – Ratio

  	
   

  
	
  Relevant Period
  commencing on 1 January 2011 and expiring
  31 December 2011.

  	
   

  	
  1.00:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2011 and expiring 30 June 2012.

  	
   

  	
  1.00:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2012 and expiring
  31 December 2012.

  	
   

  	
  1.00:1

  	
   

  



 


101

















 


	
  Column 1
  - Relevant Period

  	
   

  	
  Column 2 – Ratio

  	
   

  
	
  Relevant Period
  commencing on 1 July 2012 and expiring 30 June 2013.

  	
   

  	
  1.05:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2013 and expiring
  31 December 2013.

  	
   

  	
  1.10:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2013 and expiring 30 June 2014.

  	
   

  	
  1.15:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2014 and expiring 31 December 2014.

  	
   

  	
  1.20:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2014 and expiring 30 June 2015.

  	
   

  	
  1.25:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2015 and expiring
  31 December 2015.

  	
   

  	
  1.30:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2015 and expiring 30 June 2016.

  	
   

  	
  1.40:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2016 and expiring
  31 December 2016.

  	
   

  	
  1.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2016 and expiring 30 June 2017.

  	
   

  	
  1.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2017 and expiring
  31 December 2017.

  	
   

  	
  1.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2017 and expiring 30 June 2018.

  	
   

  	
  1.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2018 and expiring
  31 December 2018.

  	
   

  	
  1.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2018 and expiring 30 June 2019.

  	
   

  	
  1.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2019 and expiring
  31 December 2019.

  	
   

  	
  1.50:1

  	
   

  



 


20.5         Net Debt to
Adjusted Consolidated EBITDA


 


The Borrower
shall ensure that the ratio of Net Debt to Adjusted Consolidated EBITDA in
respect of any Relevant Period (and calculated on the ending balance of the
Relevant Period (subject to Clause 23.2(c) (Financial
Covenants) without double-counting provided
that any Equity Cure Contribution shall only be counted in the
calculation of Liquidity for such 


 


102

















 


purpose))
specified in column 1 (Column 1 — Relevant
Period) below shall not be greater than the ratio set out in
column 2 (Column 2 — Ratio) below
opposite that Relevant Period.


 


	
  Column 1
  - Relevant Period

  	
   

  	
  Column 2 – Ratio

  	
   

  
	
  Relevant Period
  commencing on 1 January 2012 and expiring
  31 December 2012.

  	
   

  	
  9.90:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2012 and expiring 30 June 2013.

  	
   

  	
  7.25:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2013 and expiring
  31 December 2013.

  	
   

  	
  5.60:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2013 and expiring 30 June 2014.

  	
   

  	
  4.75:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2014 and expiring
  31 December 2014.

  	
   

  	
  4.00:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2014 and expiring 30 June 2015.

  	
   

  	
  3.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2015 and expiring
  31 December 2015.

  	
   

  	
  3.00:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2015 and expiring 30 June 2016.

  	
   

  	
  2.75:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2016 and expiring
  31 December 2016.

  	
   

  	
  2.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2016 and expiring 30 June 2017.

  	
   

  	
  2.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2017 and expiring
  31 December 2017.

  	
   

  	
  2.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2017 and expiring 30 June 2018.

  	
   

  	
  2.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2018 and expiring
  31 December 2018.

  	
   

  	
  2.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 July 2018 and expiring 30 June 2019.

  	
   

  	
  2.50:1

  	
   

  
	
  Relevant Period
  commencing on 1 January 2019 and expiring
  31 December 2019.

  	
   

  	
  2.50:1

  	
   

  



 


103

















 


20.6         Financial Testing


 


The financial
covenants set out in this Clause 20 shall be tested by reference to the
most recent set of financial statements delivered for the Relevant Period
pursuant to Clause 19 (Information Undertakings).


 


21.          POSITIVE UNDERTAKINGS


 


The
undertakings in this Clause 21 (Positive Undertakings)
remain in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in force.  The Borrower shall, and shall cause each of
its Subsidiaries, to comply with the undertakings contained in this
Clause 21.


 


21.1         Compliance with
Laws


 


(a)           Observe
and remain in compliance in all material respects with all Applicable Laws and
maintain in full force and effect all Authorisations, in each case applicable
to the conduct of its business except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


(b)           Without
limiting the foregoing, the Borrower shall, and shall cause each of its Subsidiaries
to, comply in all material respects with all terms and conditions of all
Communications Licences and all federal, state and local laws, all rules,
regulations and administrative orders of the FCC, state and local commissions
or authorities, or any other Governmental Authority that are applicable to the
Borrower and its Subsidiaries or the telecommunications operations thereof; provided that the Borrower or any Subsidiary may dispute in
good faith the applicability or requirements of any such matter so long as such
dispute could not reasonably be expected to have a Material Adverse Effect.


 


21.2         Environmental
Laws


 


In addition to
and without limiting the generality of Clause 21.1 (Compliance
with Laws):


 


(a)           comply
with, and use reasonable endeavours to ensure such compliance by all tenants
and sub-tenants with all applicable Environmental Laws and obtain, comply with
and maintain, and use reasonable endeavours to ensure that all tenants and
subtenants, obtain, comply with and maintain, any and all Environmental
Permits;


 


(b)           conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws; and


 


(c)           defend,
indemnify and hold harmless the Finance Parties, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
judgments, damages, costs and expenses of whatever kind or nature known or 


 


104

















 


unknown, contingent or otherwise, arising out of, or
in any way relating to the presence of Hazardous Materials, or the violation
of, non-compliance with or liability under any Environmental Laws by the
Borrower or any such Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorneys’ and consultants’ fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor, as determined by a
court of competent jurisdiction by final non-appealable judgment.


 


21.3         Compliance with
ERISA


 


In addition to
and without limiting the generality of Clause 21.1 (Compliance
with Laws) except where the failure to comply could not,
individually or in aggregate, reasonably be expected to have a Material Adverse
Effect:


 


(a)           comply
with all material applicable provisions of ERISA and the Code (including Code
provisions compliance with which is necessary for any intended favourable tax
treatment) and the regulations and published interpretations respectively
thereunder with respect to all Employee Benefit Plans;


 


(b)           not
take any action or fail to take action the result of which could be a liability
to the PBGC or to a Multiemployer Plan;


 


(c)           not
participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the Code;


 


(d)           operate
each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code or
any liability to any qualified beneficiary as defined in Section 4980B
of the Code; and


 


(e)           furnish
to the COFACE Agent upon the COFACE Agent’s request such additional information
about any Employee Benefit Plan as may be reasonably requested by the COFACE
Agent.


 


21.4         Insurance


 


(a)           Maintain
insurance with insurance companies and/or underwriters rated by S&P or AM
Best’s Rating Agency at no lower than A- against such risks and in such amounts
as are:


 


(i)            maintained
in accordance with prudent business practice and corporate governance; and


 


(ii)           as
may be required by Applicable Law with amounts and scope of coverage not less
than those maintained by the Borrower and its Subsidiaries as of the date of
this Agreement.


 


(b)           On the
date of this Agreement and from time to time thereafter the Borrower shall
deliver to the COFACE Agent upon its request information in reasonable 


 


105

















 


detail as to the insurance then in effect, stating the
names of the insurance companies, the amounts and rates of the insurance, the
dates of the expiration thereof and the properties and risks covered thereby, provided that, with respect to paragraph (a)(i) only,
neither the Borrower nor any of its Subsidiaries shall be required to obtain
any insurance against the risk of loss of any in-orbit Satellites or against
business interruption risks in addition to or with a broader scope of coverage
than is currently maintained by the Borrower and its Subsidiaries as at the
date of this Agreement.


 


(c)           In
addition to, and without limiting the foregoing, the Borrower will, and will
cause each of its Subsidiaries to, maintain insurance with respect to the
Satellites as follows:


 


(i)            Property All Risks Insurance


 


The Borrower
will procure or will cause the Supplier to procure at its own expense and
maintain in full force and effect, at all times prior to the Launch of any
Satellite purchased by the Borrower or any of its Subsidiaries pursuant to the
terms of the Satellite Construction Contract, Property All Risks Insurance upon
such terms and conditions satisfactory to the COFACE Agent and as are
reasonably commercially available and customary in the industry which shall
cover any loss of, or damage to, the Satellites and the Satellite and Launch
specific ground components, including all components thereof, at all times
during the manufacture, testing, storage and transportation of the Satellites
and the Satellite and Launch specific ground components up to the time of Launch
of the Satellites and until delivery to the Borrower of the Satellite and
Launch specific ground components.


 


In no event
shall the Borrower or the Supplier be required to maintain or procure Property
All Risks Insurance to insure risks that may be required to be insured by, or
that covers the same risk or period of coverage provided by the Supplier as the
Launch Insurance (as defined below).  The
Borrower shall cause the Supplier to name COFACE, the COFACE Agent and the
Lenders as additional insured but only to the extent of those persons’
interests in such Satellites; and


 


(ii)           Launch Insurance


 


The Borrower
will obtain, maintain and keep in full force and effect with respect to each
Satellite that is to be launched, space risk insurance against loss of or
damage to the Satellite such space risk insurance (hereinafter in this
Clause 21.4 “Launch Insurance”).  Launch Insurance shall be bound no later than
three (3) Months prior to the then scheduled Launch date of such
Satellite.


 


The Launch
Insurance shall include in-orbit cover providing for:


 


(x)           in the case of the first Launch of
six (6) Satellites, a six (6) Month stabilisation and
performance test period for such six (6) Satellites; and


 


106

















 


(y)           in the case of each of the three (3) proposed
Launches following the first Launch, a three (3) Month stabilisation and
performance test period for each Satellite,


 


Such Launch
Insurance shall be in accordance with terms commercially available and
reasonably acceptable to the COFACE Agent (acting on the instructions of the
Majority Lenders) following consultation with the Insurance Consultant.  The Borrower shall not be obliged to obtain,
maintain or keep in force space risk insurance on any Satellite after termination
for that Satellite under the relevant Launch Insurance policy.  The Launch Insurance for each Satellite
shall:


 


(A)          commence from the time that is the
earlier of (i) the time designated by the Launch Services Provider during
the launch sequence when the command to ignite is intentionally sent to one of
the motors of the Launch Vehicle (as such term is defined in the Launch
Services Contract) for the purpose of Launch following a planned countdown; and
(ii) the time that the cover with respect to the relevant Satellite being
launched expires under the insurance procured by the Supplier;


 


(B)          be denominated in Dollars for an amount not
less than one hundred and ninety million nine hundred thousand Dollars
(US$190,900,000) million until the date of the first successful Launch, and
thereafter, to be an amount equal to the higher of (i) the replacement
cost of a Satellite (including, the purchase price, Launch and insurances) and (ii) one
hundred and forty six million five hundred eighty five thousand and five
hundred Dollars (US$146,585,500));


 


(C)          name the applicable Obligor purchasing the
Satellite as the named insured and the Security Agent for and on behalf of the
Lenders as additional insured and first loss payee in accordance with the Loss
Payable Clause up to the amount specified in Clause 21.4(e)(ii)(A) and
provide that payments due thereunder shall be payable directly to the Security
Agent as first loss payee (“Loss Payee”)
who, prior to an Event of Default, shall transfer to the Collection Account,
for and on behalf of the Lenders, who shall receive in full such payments to be
applied in accordance with Clause 10 (Insurance Proceeds Account)
of the Accounts Agreement, including any accrued unpaid interest; provided that claims if any shall be adjusted with the named
insured and paid to the Loss Payee; and


 


(D)          provide that it will not be cancelled or
reduced (other than a reduction from the payment of a claim) or amended without
notice to the COFACE Agent.  All such
notices shall be sent by facsimile and e-mail to the COFACE Agent by the
insurers at the same time such notices are sent to the Borrower and shall be
effective as stated in such notices provided that,
fifteen 


 


107

















 


(15) days’
advance written notice shall be given in the event of notice of cancellation
for non-payment of premium.


 


The Borrower
shall submit evidence of cover satisfactory to the COFACE Agent (acting in
consultation with the Insurance Consultant), being either the broker’s issued
policy documentation cover note, binder or policy documents issued by the
relevant Insurer (the “Launch Insurance
Documentation”) to the COFACE Agent at least ninety (90) days
prior to the first scheduled Launch date or, upon written request from the Borrower
and subject to the approval of the COFACE Agent, such later mutually agreed
date based on prevailing market conditions.


 


The Borrower
shall obtain from its insurer providing the Launch Insurance waivers of any
subrogation rights against the Supplier (or its sub-contractors) and shall
provide evidence of such waivers to the COFACE Agent sixty (60) days prior
to the Launch of any Satellite and shall provide the COFACE Agent with a
certificate of such insurance coverage (including the percentage of risks given
to such insurer) at the COFACE Agent’s request.


 


(iii)          Third Party Liability Insurance


 


The Borrower
shall:


 


(A)          cause
the Supplier to subscribe before Launch and/or maintain in full force and
effect a third party liability insurance for liabilities arising from bodily
injury and loss or damage to third party property (“Third Party Liability Insurance”);


 


(B)          cause
the Launch Services Provider to subscribe for and maintain Third Party
Liability Insurance coverage for liabilities arising from bodily injury and
loss or damage to third party property caused by Satellites after Launch in an
amount on an annual basis of not less than an aggregate amount equal to:


 


(aa)         sixty million nine hundred and eighty
thousand Euros (€60,980,000) in respect of a Launch from the Kourou launch
site;


 


(bb)        one hundred million Dollars
(US$100,000,000) in respect of the risks covered under Article 15.2.1(ii) of
the Launch Services Contract, for Launches from the Baïkonur launch site.


 


in each case,
per occurrence, naming COFACE, the COFACE Agent and the Lenders as additional
insured thereunder.  In accordance with
the Satellite Construction Contract, the Borrower shall use its best efforts to
cause the Launch Services Provider to name the Supplier (and its
sub-contractors) as


 


108
















 


additional insureds under the Launch
Services Provider’s Third Party Liability Insurance; and


 


(C)                                cause the Launch Services Provider to submit a copy of the Third
Party Liability Insurance documentation to the COFACE Agent as soon as
practicable and in any event no less than thirty (30) days prior to the
scheduled Launch date for any Launch. 
Such insurance shall be in full force at the Launch date (as of
Intentional Ignition (as such term is defined in the Launch Services Contract))
and shall be maintained for a period equal to the lesser of:


 


(aa)                            twelve (12) Months; or


 


(bb)                          so long as all or any part of the Launch
Vehicle (as such term is defined in the Launch Services Contract), the
Satellite(s) and/or their components remain in orbit.


 


(d)                                 Each insurance policy shall comply with the Lenders’ requirements
set out in Clause 21.4(e) below and shall be on reasonable terms and
conditions and with acceptable exclusions and a reasonable level of deductible
acceptable to the COFACE Agent (acting on the instructions of the Majority
Lenders).


 


(e)                                  General Insurance Provisions and
Requirements


 


The Borrower
shall:


 


(i)                                     provide, or as appropriate, request the Supplier and/or the Launch
Services Provider to deliver to the COFACE Agent, promptly after issuance of each
relevant Insurance, certificate(s) of internationally recognised insurance
broker(s) usually involved in space risk insurance and approved by the
Lenders, confirming that:


 


(A)                              the Property All Risks Insurance, the Launch Insurance and the Third
Party Liability Insurance, as appropriate, are in full force and effect on the
date they are respectively required to be entered into force,


 


(B)                                the names and percentages of the relevant insurance companies;


 


(C)                                the sums insured and expiration dates of such Insurances;


 


(D)                               the premia for the Property All Risks Insurance, Launch Insurance
and the Third Party Liability Insurances shall be payable by the Borrower, the
Supplier and the Launch Services Provider, as applicable, in accordance with
the terms of credit agreed for each such Insurance; and


 


(E)                                 all premia due at the date of such certificate have been paid in
full.


 


109





















 


(ii)                                  use reasonable efforts (having regard to the terms which are
reasonably commercially available in the insurance market) to obtain agreement
to incorporate in the Insurances the following provisions or provisions
substantially similar in content:


 


(A)                              the insurers, either directly or via the insurance broker, and the
broker shall also advise the COFACE Agent (by facsimile and by e-mail) of any
loss or of any default in the payment of any premium and of any event other act
or omission on the part of the Borrower, the Supplier and/or the Launch Service
Provider, as applicable, of which the broker or the insurers have knowledge and
which might result in the invalidation, the lapse or the cancellation in whole
or in part of such Insurance;


 


(B)                                the COFACE Agent and/or the Lenders shall have the right (without
any obligation) to pay the insurance premia if the relevant party fails to or
delays in making any such payment within the time periods specified in the
relevant insurance policies.  If any
payment of the premia is effected by the COFACE Agent and/or the Lenders, the
Borrower shall on demand reimburse the COFACE Agent and/or the Lenders the
amount of any premia so paid and all related costs and expenses;


 


(C)                                if the Borrower, the Supplier and/or the Launch Services Provider
(as applicable) fails or delays in filing any notice of proof of loss, the
COFACE Agent shall have the right to join the Borrower, the Supplier and/or the
Launch Services Provider (as applicable) in submitting a notice of proof of any
loss within the time periods specified in the applicable insurance policies;


 


(D)                               the insurers waive:


 


(aa)                            all rights of set-off and counterclaim
against COFACE, the COFACE Agent and the Lenders in connection with their
rights to make payments under such insurance; and


 


(bb)                          all rights of subrogation to the rights of
the COFACE Agent and the Lenders against the Borrower;


 


(E)                                 the insurance be primary and not excess to or contributory to any
insurance or self-insurance maintained by the Lenders;


 


(F)                                 the Insurances shall not be permitted to lapse or to be cancelled,
without written notice being given by facsimile and e-mail to the COFACE Agent
at the same time such notices are sent to the Borrower and shall be effective
as stated in such notices provided that,
fifteen (15) days’ advance written notice shall be given by the Borrower
in the event of notice of cancellation for non-payment of premium; and


 


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(G)                                the insurers will undertake, not to make any material modification
or amendment to the terms of such insurance policies without the prior written
consent of the COFACE Agent (acting on the instructions of all the
Lenders).  For the purpose of this
paragraph (G), material modification means a modification such that the
insurance as modified would not meet any longer the terms and conditions set
out in this Agreement.


 


21.5                          Additional Domestic Subsidiaries


 


Notify the
COFACE Agent of the creation or acquisition of any Domestic Subsidiary and
promptly thereafter (and in any event within sixty (60) days), cause such
person to:


 


(a)                                  become a Subsidiary Guarantor by delivering to the COFACE Agent a
duly executed Guarantee Agreement or such other document as the COFACE Agent
shall deem appropriate for such purpose;


 


(b)                                 pledge a security interest in all Collateral owned by such
Subsidiary (provided that if such Collateral
consists of Capital Stock of a Foreign Subsidiary, such security interest will
be limited to sixty-five per cent. (65%)
of such Capital Stock (subject to the provisions of Clause 3.6 (Foreign Subsidiaries Security) of the Stock Pledge
Agreement)) by delivering to the COFACE Agent a duly executed supplement to
each Security Document or such other document as the COFACE Agent shall deem
appropriate for such purpose and comply with the terms of each Security
Document;


 


(c)                                  deliver to the COFACE Agent such documents and certificates referred
to in Schedule 2 (Conditions Precedent) as may be
reasonably requested by the COFACE Agent;


 


(d)                                 deliver to the COFACE Agent such original Capital Stock or other
certificates and stock or other transfer powers evidencing the Capital Stock of
such person;


 


(e)                                  deliver to the COFACE Agent such updated Schedules to the Finance
Documents as requested by the COFACE Agent with respect to such person; and


 


(f)                                    deliver to the COFACE Agent such other documents as may be
reasonably requested by the COFACE Agent (including, any “know your
customer” information), all in form, content and scope reasonably
satisfactory to the COFACE Agent.


 


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21.6                          Additional Foreign Subsidiaries


 


Notify the
COFACE Agent at the time that any person becomes a Foreign Subsidiary of the
Borrower or any Subsidiary, and promptly thereafter (and in any event within
sixty (60) days after notification):


 


(a)                                  with respect to any Subsidiary that is directly owned by an Obligor,
cause the Borrower or the applicable Subsidiary to deliver to the COFACE Agent
a Security Document pledging sixty five per cent.  (65%) of the total outstanding Capital Stock of such new
Foreign Subsidiary (subject to the provisions of Clause 3.6 (Foreign Subsidiaries Security) of the Stock Pledge
Agreement) and a consent thereto executed by such new Foreign Subsidiary
(including, without limitation, if applicable, original stock certificates (or
the equivalent thereof pursuant to the Applicable Laws and practices of any
relevant foreign jurisdiction) evidencing that the Capital Stock of such new
Foreign Subsidiary, together with an appropriate undated stock power for each
certificate duly executed in blank by the registered owner thereof);


 


(b)                                 cause such person to deliver to the COFACE Agent such documents and
certificates referred to in Schedule 2 (Conditions Precedent) as may be reasonably requested by the
COFACE Agent;


 


(c)                                  cause the Borrower to deliver to the COFACE Agent such updated
Schedules to the Finance Documents as requested by the COFACE Agent with regard
to such person; and


 


(d)                                 cause such person to deliver to the COFACE Agent such other
documents as may be reasonably requested by the COFACE Agent, all in form, content
and scope reasonably satisfactory to the COFACE Agent.


 


21.7                          Additional Communications Licences


 


Notify the COFACE Agent within thirty
(30) days after the acquisition of any Material Communications Licence and
cause any Communications Licence issued by the FCC that is acquired by the
Borrower or any Subsidiary thereof after the date of this Agreement to be held
by a Licence Subsidiary.


 


21.8                          Owned Real Property


 


As soon as
practical, and in any event within thirty (30) days following Financial
Close (as such date may be extended by the COFACE Agent in its reasonable
discretion), or at such later time as may be provided below, with respect to
all owned real property (to the extent located in the United States) of
the Borrower or any of the other Subsidiaries as of the date of this Agreement:


 


(a)                                  Mortgages


 


the COFACE Agent shall have received a duly
authorised, executed and delivered Mortgage in form and substance reasonably
satisfactory to the COFACE Agent;


 


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(b)                                 Title Insurance


 


the COFACE Agent shall have received upon
its written request therefor a marked-up commitment for a policy of title
insurance, insuring the Finance Parties’ first priority Liens and showing no
Liens (other than those Liens set out in items 7 and 8 of Schedule 17 (Existing Liens)), prior to the Finance Parties’ Liens other
than for ad valorem taxes not yet due and
payable, with title insurance companies acceptable to the COFACE Agent on the
property subject to a Mortgage with the final title insurance policy, being
delivered within sixty (60) days after the date of this Agreement, as such
date may be extended by the COFACE Agent in its reasonable discretion.  Further, the Borrower agrees to provide or
obtain any customary affidavits and indemnities as may be required or necessary
to obtain title insurance satisfactory to the COFACE Agent;


 


(c)                                  Title Exceptions


 


the
COFACE Agent shall have received upon its written request therefor copies of
all recorded documents creating exceptions to the title policy referred to in
Clause 21.8(a) (Mortgages);


 


(d)                                 Matters Relating to Flood Hazard Properties


 


the COFACE Agent shall have received upon
its written request therefor a certification from the National Research Center,
or any successor agency thereto, regarding each parcel of real property subject
to a Mortgage; and


 


(e)                                  Other Real Property Information


 


the COFACE Agent shall have received such
other certificates, documents and information as are reasonably requested by
the COFACE Agent, including, without limitation, engineering and structural
reports, permanent certificates of occupancy and evidence of zoning compliance,
each in form and substance satisfactory to the COFACE Agent.


 


21.9                          Leased Real Property


 


The Borrower shall use reasonable efforts
to cause within thirty (30) days following the written request therefor by
the COFACE Agent (as such date may be extended by the COFACE Agent in its
reasonable discretion), with respect to all leased real property (to the extent
located in the United States) of the Borrower or any of its Subsidiaries
as of the date of this Agreement, the COFACE Agent to have received a duly
authorized, executed and delivered collateral assignment of lease and related
landlord agreement, in each case, in form and substance satisfactory thereto.


 


21.10                    After Acquired Real Property Collateral


 


Notify the
COFACE Agent, within ten (10) Business Days after the acquisition of any
owned or leased real property by any Obligor that is not subject to the
existing Security Documents, and within ninety (90) days following request
by the COFACE Agent, deliver or, in the case of leased real property, use
reasonable efforts to deliver,


 


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the
corresponding documents, instruments and information required to be delivered
pursuant to:


 


(a)                                  Clause 21.8 (Owned Real Property)
if such real property is owned; or


 


(b)                                 Clause 21.9 (Leased Real Property)
if such real property is leased.


 


21.11                    Hedging Agreements


 


Not later than ninety (90) days after
the end of any fiscal quarter during which more than twenty five per cent. (25%) of revenues is
originally denominated in a single currency other than Dollars or Canadian
Dollars, execute foreign currency exchange or swap Hedging Agreements with the
Original Lenders for such currency on terms and conditions reasonably
acceptable to the COFACE Agent.


 


21.12                    Taxation


 


(a)                                  Each Obligor shall (and the Borrower shall ensure that each member
of the Group will) pay and discharge all Taxes imposed upon it or its assets
within the time period allowed without incurring penalties unless and only to
the extent that:


 


(i)                                     such payment is being contested in good faith;


 


(ii)                                  adequate reserves are being maintained for those Taxes and the costs
required to contest them which have been disclosed in its latest financial
statements delivered to the COFACE Agent under Clause 19 (Information Undertakings); and


 


(iii)                               such payment can be lawfully withheld and failure to pay those Taxes
does not have or is not reasonably likely to have a Material Adverse Effect.


 


(b)                                 No Obligor may change its residence for Tax purposes.


 


21.13                    Preservation of Assets


 


The Borrower shall (and shall ensure that
each member of the Group will) maintain in good working order and condition
(ordinary wear and tear excepted) all of its assets necessary in the conduct of
its business.


 


21.14                    Pari Passu
Ranking


 


The Borrower
shall (and shall ensure that each Obligor will):


 


(a)                                  procure that its obligations under the Finance Documents to which it
is a party do and will rank at least pari passu with
all its other present and future unsecured, unsubordinated obligations, save
for obligations preferred by operation of Applicable Law; and


 


(b)                                 ensure that at all times the claims of each Finance Party against it
under the Finance Documents to which it is a party rank at least pari passu with the


 


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claims of all its unsecured creditors save
those whose claims are preferred by any bankruptcy, insolvency, liquidation or
similar Applicable Laws of general application.


 


21.15                    Intellectual Property


 


The Borrower
shall (and shall ensure that each member of the Group will):


 


(a)                                  preserve and maintain the subsistence and validity of the
Intellectual Property necessary for the business of the relevant Group member;


 


(b)                                 use reasonable endeavours to prevent any infringement in any
material respect of the Intellectual Property;


 


(c)                                  make registrations and pay all registration fees and taxes necessary
to maintain the Intellectual Property in full force and effect and record its
interest in that Intellectual Property;


 


(d)                                 not use or permit the Intellectual Property to be used in a way or
take any step or omit to take any step in respect of that Intellectual Property
which may materially and adversely affect the existence or value of the
Intellectual Property or imperil the right of any member of the Group to use
such property; and


 


(e)                                  not discontinue the use of the Intellectual Property,


 


where failure to do so, in the case of
paragraphs (a) and (b) above, or, in the case paragraphs (d) and
(e) above, such use, permission to use, omission or discontinuation, is
reasonably likely to have a Material Adverse Effect.


 


21.16                    Access


 


If a Default
is continuing or the COFACE Agent reasonably suspects a Default is continuing
or may occur, each Obligor shall, and the Borrower shall ensure that each
member of the Group will permit the COFACE Agent and/or the Security Agent
and/or accountants or other professional advisers and contractors of the COFACE
Agent or Security Agent free access at all reasonable times and on reasonable
notice at the risk and cost of the Borrower to:


 


(a)                                  the premises, assets, books, accounts and records of each member of
the Group; and


 


(b)                                 meet and discuss matters with management of the Group.


 


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21.17                    Further Assurance


 


(a)                                  The Borrower shall (and shall procure that each member of the Group
will) promptly do all such acts or execute all such documents (including
assignments, transfers, mortgages, charges, notices and instructions) as the
Security Agent may reasonably specify (and in such form as the Security Agent
may reasonably require in favour of the Security Agent or its nominee(s)):


 


(i)                                     to perfect a Lien created or intended to be created under or
evidenced by the Security Documents (which may include the execution of a
mortgage, charge, assignment or other Lien over all or any of the assets which
are, or are intended to be, the subject of the Security Documents) or for the
exercise of any rights, powers and remedies of the Security Agent or the
Finance Parties provided by or pursuant to the Finance Documents or by
Applicable Law;


 


(ii)                                  to confer on the Security Agent or confer on the Finance Parties a
Lien over any property and assets of the Group located in any jurisdiction
equivalent or similar to a Lien intended to be conferred by or pursuant to the
Security Documents; and


 


(iii)                               to facilitate the realisation of the assets which are, or are
intended to be, the subject of a Lien.


 


(b)                                 The Borrower shall (and shall procure that each member of the Group
shall) take all such action as is available to it (including making all filings
and registrations) as may be necessary for the purpose of the creation, perfection,
protection or maintenance of any Lien conferred or intended to be conferred on
the Security Agent or the Finance Parties by or pursuant to the Finance
Documents.


 


21.18                    Payments under the Satellite Construction Contract


 


All
payments to be made in accordance with Exhibit F of the Satellite
Construction Contract for the balance of phase 1 and 2 after EDC2 (as such term
is defined in the Satellite Construction Contract) shall be invoiced in Euros
by the Supplier and paid in Dollars using the exchange rate set out in the
Thales Direct Agreement.


 


22.                               NEGATIVE UNDERTAKINGS


 


The undertakings in this Clause 22 (Negative Undertakings) remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance Documents
or any Commitment is in force.  The
Borrower shall, and shall cause each of its Subsidiaries to, comply with the
undertakings contained in this Clause 22.


 


22.1                          Limitations on Financial Indebtedness


 


Not create,
incur, assume or suffer to exist any Financial Indebtedness except:


 


(a)                                  the Obligations (excluding any Hedging Obligations permitted
pursuant to Clause 22.1(c));


 


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(b)                                 Financial Indebtedness incurred in connection with the Interest Rate
Cap Agreement;


 


(c)                                  Financial Indebtedness incurred in connection with a Hedging
Agreement required pursuant to Clause 21.11 (Hedging
Agreements);


 


(d)                                 Financial Indebtedness existing on the date of this Agreement and
not otherwise permitted under this Clause and set out in Schedule 14 (Financial Indebtedness and
Guarantee Obligations);


 


(e)                                  Guarantee Obligations in favour of the COFACE Agent for the benefit
of the COFACE Agent and the Finance Parties;


 


(f)                                    unsecured:


 


(i)                                     Subordinated Indebtedness owed by any Obligor to another Obligor;


 


(ii)                                  Subordinated Indebtedness owed by any Obligor to a Foreign
Subsidiary;


 


(iii)                               Financial Indebtedness owed by a Foreign Subsidiary to any Obligor; provided that the aggregate amount of such Financial
Indebtedness outstanding at any time pursuant to this paragraph (iii) shall
not exceed the Foreign Investment Limitation (calculated without regard to
paragraph (b) of the definition of Foreign Investment Limitation and
excluding the Existing Canadian Note) as of any date of determination;


 


(iv)                              Financial Indebtedness owed by a Foreign Subsidiary to another
Foreign Subsidiary; and


 


(v)                                 Guarantee Obligations by the Borrower on behalf of any Obligor or
Foreign Subsidiary not to exceed one million Dollars (US$1,000,000) in
aggregate;


 


(g)                                 Financial Indebtedness pursuant to the following paragraphs (i) to
(v) (and any extension, renewal, replacement or refinancing thereof, but
not to increase the aggregate principal amount), provided
that at the time such Financial Indebtedness is incurred, the COFACE
Agent and the Lenders shall have received from the Borrower a Compliance
Certificate in form and substance satisfactory to the COFACE Agent (including
an Adjusted Consolidated EBITDA Reconciliation for the fiscal period covered by
such Compliance Certificate), demonstrating that, after giving effect to the
incurrence of any such Financial Indebtedness, the Borrower will be in pro forma compliance with the financial covenants set forth
in Clause 20 (Financial Covenants)
applicable at such time:


 


(i)                                     Financial Indebtedness of the Borrower and its Subsidiaries incurred
in connection with Capital Leases and/or purchase money Financial Indebtedness
of the Borrower and its Subsidiaries in an aggregate amount not to exceed
twenty five million Dollars (US$25,000,000) on any date of determination;


 


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(ii)                                  Financial Indebtedness of a person existing at the time such person
became a Subsidiary or assets were acquired from such person not exceeding ten
million Dollars (US$10,000,000), to the extent such Financial Indebtedness was
not incurred in connection with or in contemplation of, such person becoming a
Subsidiary or the acquisition of such assets, which transactions in aggregate
since the date of this Agreement do not exceed at any time twenty five million
Dollars (US$25,000,000);


 


(iii)                               Guarantee Obligations with respect to Financial Indebtedness
permitted pursuant to paragraph (g) of this Clause;


 


(iv)                              Financial Indebtedness of Foreign Subsidiaries, not to exceed in the
aggregate at any time outstanding two million Dollars (US$2,000,000); and


 


(v)                                 Subordinated Indebtedness not otherwise permitted pursuant to this
Clause in an aggregate amount outstanding not to exceed two hundred million
Dollars (US$200,000,000) at any time, provided that,  no Event of Default has occurred and is continuing and
subject to the prior agreement of an Acceptable Intercreditor Agreement;


 


(h)                                 Financial Indebtedness incurred in respect of workers’ compensation
claims, self-insurance obligations, bankers’ acceptances, performance, surety
and similar bonds and completion guarantees provided by the Borrower or one of
its Subsidiaries in the ordinary course of trading, not to exceed in the
aggregate at any time outstanding ten million Dollars (US$10,000,000);


 


(i)                                     Financial Indebtedness arising from the honouring by a bank or other
financial institution of a cheque, draft or similar instrument in the ordinary
course of trading inadvertently drawn against insufficient funds, provided however, that such
Financial Indebtedness is extinguished within five (5) Business Days and
does not exceed in the aggregate at any time outstanding ten million Dollars
(US$10,000,000);


 


(j)                                     Financial Indebtedness arising from any agreement by the Borrower or
any of its Subsidiaries providing for indemnities, guarantees, purchase price
adjustments, holdbacks, contingency payment obligations based on the
performances of the acquired or disposed assets or similar obligations incurred
by any person in connection with the acquisition or disposition of assets or
Capital Stock as permitted by this Agreement provided
that such Financial Indebtedness does not exceed in the aggregate at
any time outstanding ten million Dollars (US$10,000,000); and


 


(k)                                  Financial Indebtedness otherwise approved by the COFACE Agent in
writing.


 


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22.2                          Limitations
on Liens


 


Not create,
incur, assume or suffer to exist, any Lien on or with respect to any of its
assets or properties (including, without limitation, shares of Capital Stock),
real or personal, whether now owned or hereafter acquired, except:


 


(a)                                  Liens
of the Security Agent or the COFACE Agent (as the case may be) for the benefit
of the Finance Parties under the Finance Documents;


 


(b)                                 Liens
not otherwise permitted by this Clause and in existence on the date of this
Agreement and described in Schedule 17 (Existing Liens);


 


(c)                                  Liens
for taxes, assessments and other governmental charges or levies not yet due or
as to which the period of grace if any, related thereto has not expired or
which are being contested in good faith and by appropriate proceedings if
adequate reserves are maintained to the extent required by GAAP;


 


(d)                                 the
claims of materialmen, mechanics, carriers, warehousemen, processors or
landlords for labour, materials, supplies or rentals incurred in the ordinary
course of trading:


 


(i)                                     which
are not overdue for a period of more than ninety (90) days; or


 


(ii)                                  which
are being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;


 


(e)                                  Liens
consisting of deposits or pledges made in the ordinary course of trading in
connection with, or to secure payment of, obligations under workers’
compensation, unemployment insurance or similar legislation;


 


(f)                                    Liens
constituting encumbrances in the nature of zoning restrictions, easements and
rights or restrictions of record on the use of real property, which in the
aggregate are not substantial in amount and which do not, in any case, detract
from the value of such property or impair the use thereof in the ordinary
conduct of trading;


 


(g)                                 Liens
existing on any asset of any person at the time such person becomes a
Subsidiary or is merged or consolidated with or into a Subsidiary which:


 


(i)                                     were
not created in contemplation of or in connection with such event; and


 


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(ii)                                  do
not extend to or cover any other property or assets of the Borrower or any
Subsidiary, so long as any Financial Indebtedness related to any such Liens are
permitted under Clause 22.1(g)(ii) (Limitations
on Financial Indebtedness):


 


(h)                                 Liens
securing Financial Indebtedness permitted under Clause 22.1(g)(i) (Limitations on Financial Indebtedness) provided
that:


 


(i)                                     such
Liens shall be created substantially simultaneously with the acquisition or
lease of the related asset;


 


(ii)                                  such
Liens do not at any time encumber any property other than the property financed
by such Financial Indebtedness;


 


(iii)                               the
amount of Financial Indebtedness secured thereby is not increased; and


 


(iv)                              the
principal amount of Financial Indebtedness secured by any such Lien shall at no
time exceed one hundred per cent.
(100%) of the original purchase price or lease payment amount of such property
at the time it was acquired;


 


(i)                                     Liens
securing Financial Indebtedness permitted under Clause 22.1(g)(iv) (Limitations on Financial Indebtedness) provided
that such liens do not at any time encumber any property other than
that of the applicable Foreign Subsidiary obliged with respect to such
Financial Indebtedness;


 


(j)                                     Liens
to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the
ordinary course of trading;


 


(k)                                  Liens
incurred or deposits made in the ordinary course of trading in connection with
workers’ compensation, unemployment insurance and other types of social
security;


 


(l)                                     rights
of banks to set-off deposits against debts owed to such banks;


 


(m)                               Liens
upon specific items of inventory or other goods and proceeds of the Borrower
and its Subsidiaries securing their obligations in respect of bankers’
acceptances issued or created for the account of any such person to facilitate
the purchase, storage or shipment of such inventory or other goods;


 


(n)                                 Liens
in favour of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;


 


(o)                                 Liens
encumbering property or assets under construction arising from progress or
partial payments by a customer of the Borrower or one of its Subsidiaries
relating to such property or assets;


 


(p)                                 Liens
on assets that are the subject of a sale and leaseback transaction permitted by
the provisions of this Agreement;


 


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(q)                                 Liens
securing Satellite Vendor Obligations, provided that
such Lien does not attach or encumber any asset or property of the Borrower or
any Subsidiary thereof other than the asset or personal property which is the
subject of such obligation or the Escrow Account;


 


(r)                                    Liens
securing Financial Indebtedness permitted by Clause 22.1(b) or (c) (Limitations on Financial Indebtedness);


 


(s)                                  Liens
not otherwise permitted under this Agreement securing obligations not at any
time exceeding in aggregate five million Dollars (US$5,000,000); and


 


(t)                                    Liens
otherwise approved by the COFACE Agent in writing.


 


22.3                          Limitations
on Loans, Investments and Acquisitions


 


Not purchase,
own, invest in or otherwise acquire, directly or indirectly, any Capital Stock,
interests in any partnership or joint venture (including, without limitation,
the creation or capitalisation of any Subsidiary), evidence of Financial
Indebtedness or other obligation or security, substantially all or a portion of
the business or assets of any other person or any other investment or interest
whatsoever in any other person, or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or any investment
in cash or by delivery of property in, any person except:


 


(a)                                  investments:


 


(i)                                     existing
on the date of this Agreement in Subsidiaries existing on the date of this
Agreement;


 


(ii)                                  after
the date of this Agreement in:


 


(A)                              existing
Subsidiaries; and/or


 


(B)                                Subsidiaries
formed after the date of this Agreement, provided
that, in each case:


 


(x)                                   the Borrower and its Subsidiaries comply
with the applicable provisions of Clause 21.5 (Additional
Domestic Subsidiaries); and


 


(y)                                 the amount of any such investments in a
Foreign Subsidiary shall not exceed the Foreign Investment Limitation as of the
date of such investment;


 


(iii)                               the
other loans, advances and investments described on Schedule 21 (Existing Loans, Investments and Advances) existing on the
date of this Agreement;


 


(iv)                              by
any Subsidiary in the Borrower;


 


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(b)                                 investments
in:


 


(i)                                     marketable
direct obligations issued or unconditionally guaranteed by the
United States or any agency thereof maturing within one hundred and twenty
(120) days from the date of acquisition thereof;


 


(ii)                                  commercial
paper maturing no more than one hundred and twenty (120) days from the
date of creation thereof and currently having the highest rating obtainable
from either S&P or Moody’s;


 


(iii)                               certificates
of deposit maturing no more than one hundred and twenty (120) days from
the date of creation thereof issued by commercial banks incorporated under the
laws of the United States, each having combined capital, surplus and
undivided profits of not less than five hundred million Dollars (US$500,000,000)
and having a rating of “A” or better
from either S&P or Moody’s; provided that
the aggregate amount invested in such certificates of deposit shall not at any
time exceed five million Dollars (US$5,000,000) for any one such certificate of
deposit and ten million Dollars (US$10,000,000) for any one such bank;


 


(iv)                              time
deposits maturing no more than thirty (30) days from the date of creation
thereof with commercial banks or savings banks or savings and loan associations
each having membership either in the FDIC or the deposits of which are insured
by the FDIC and in amounts not exceeding the maximum amounts of insurance
thereunder; and


 


(v)                                 other
investments permitted by the Borrower’s investment policy as of the date hereof
in the form attached at Schedule 27 (Investment Policy);


 


(c)                                  investments
by the Borrower or any of its Subsidiaries in the form of Permitted
Acquisitions or Permitted Joint Venture Investments; provided
that the amount of any such investments in a Foreign Subsidiary (or
any entity that would constitute a Foreign Subsidiary if the Borrower or one of
its Subsidiaries owned more than fifty percent (50%) of the outstanding Capital
Stock of such entity) shall not exceed the Foreign Investment Limitation as of
the date of such investment;


 


(d)                                 Hedging
Agreements permitted pursuant to Clause 21.11 (Hedging
Agreements) and any Interest Rate Cap Agreement and investments in
collateral accounts securing any Hedging Agreements and Interest Rate Cap
Agreement;


 


(e)                                  purchases
of assets in the ordinary course of trading;


 


(f)                                    investments
in the form of loans and advances to employees in the ordinary course of
trading, which, in aggregate, do not exceed at any time five hundred thousand
Dollars (US$500,000);


 


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(g)                                 intercompany
Financial Indebtedness permitted pursuant to Clause 22.1(e) (Limitations on Financial Indebtedness);


 


(h)                                 loans
to one (1) or more officers or other employees of the Borrower or its
Subsidiaries in connection with such officers’ or employees’ acquisition of
Capital Stock of the Borrower in  the ordinary course of trading,
consistent with the Borrower’s equity incentive plan, which, in aggregate, do
not exceed at any time five hundred thousand Dollars (US$500,000);


 


(i)                                     endorsement
of cheques or bank drafts for deposit or collection in the ordinary course of
trading;


 


(j)                                     performance,
surety and appeal bonds;


 


(k)                                  investments
consisting of non-cash consideration received by the Borrower or any of its
Subsidiaries from the sale of assets or Capital Stock of a Subsidiary as
permitted by this Agreement; and


 


(l)                                     investments
in Globaltouch (West Africa) Limited provided that:


 


(i)                                     the
amount of such investment does not exceed five million Dollars (US$5,000,000)
including any such investment made prior to the date of this Agreement;


 


(ii)                                  the
investment complies with paragraphs (b), (d) and (e) of the
definition of Permitted Joint Venture Investments; and


 


(iii)                               the
Borrower shall deliver such information relating to the investment as the
COFACE Agent may reasonably request.


 


22.4                          Limitations
on Mergers and Liquidations


 


Not merge,
consolidate or enter into any similar combination with any other person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:


 


(a)                                  any
Wholly-Owned Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower (provided that
the Borrower shall be the continuing or surviving person) or with or into any
Subsidiary Guarantor (provided that
the Subsidiary Guarantor shall be the continuing or surviving person);


 


(b)                                 any
Wholly-Owned Subsidiary may sell, lease, transfer or otherwise dispose of any
or all of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any other Wholly-Owned Subsidiary; (provided that
if the transferor in such a transaction is a Subsidiary Guarantor, then the
transferee must either be the Borrower or a Subsidiary Guarantor);


 


(c)                                  any
Wholly-Owned Subsidiary of the Borrower may merge with or into the person such
Wholly-Owned Subsidiary was formed to acquire in connection with a Permitted
Acquisition; and


 


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(d)                                 any
Subsidiary of the Borrower may wind-up into the Borrower or any Subsidiary
Guarantor.


 


22.5                          Limitations
on Asset Dispositions


 


Not make any
Asset Disposition (including, without limitation, the sale of any receivables
and leasehold interests and any sale-leaseback or similar transaction) except:


 


(a)                                  the
sale of inventory in the ordinary course of trading;


 


(b)                                 the
sale of obsolete, damaged, worn-out or surplus assets no longer needed in the
business of the Borrower or any of its Subsidiaries;


 


(c)                                  any
lease or sub-licence of spectrum subject to a Communications Licence provided that such lease or sub-licence is on bona fide arms length terms at the time such agreement is
entered into and does not have, and could not reasonably expected to have, a
Material Adverse Effect;


 


(d)                                 the
transfer of assets to the Borrower or any Subsidiary Guarantor pursuant to
Clause 22.4 (Limitations on Mergers and Liquidations);
and


 


(e)                                  the
sale or discount without recourse of accounts receivable arising in the
ordinary course of trading in connection with the compromise or collection
thereof.


 


22.6                          Limitations
on Dividends and Distributions


 


The Borrower
shall not pay or make any Shareholder Distribution:


 


(a)                                  prior
to the end of the Availability Period; and


 


(b)                                 thereafter,
unless on the date for the proposed Shareholder Distribution:


 


(i)                                     the
Debt Service Coverage Ratio calculated by reference to:


 


(A)                              each
Debt Service Period preceding the date of calculation; and


 


(B)                                the
audited financial statements delivered in accordance with this Agreement,


 


for the twelve (12) Months preceding
the date of the proposed Shareholder Distribution is equal to or more than
1.50:1 (one point five to one) and provided that,
any Shareholder Distribution is made within thirty (30) days of the date
on which such financial statements used in the calculation of the Debt Service
Coverage Ratio were delivered in accordance with this Agreement;


 


(ii)                                  no
Default shall have occurred and be continuing;


 


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(iii)                               the
Debt Service Reserve Account is funded with the DSRA Required Balance (both
before and immediately after the relevant Shareholder Distribution);


 


(iv)                              the
Borrower has made payment in full to the Supplier of each of the
forty eight (48) Satellites;


 


(v)                                 the
Debt Service Account is funded with the DSA Required Balance (both before and
immediately after the relevant Shareholder Distribution);


 


(vi)                              the
Convertible Notes Reserve Account is funded with the CNRA Required Balance
(both before and immediately after the relevant Shareholder Distribution); and


 


(vii)                           the
Borrower has made each mandatory prepayment required pursuant to
Clause 7.3 (Mandatory Prepayment — Initial Excess Cash
Flow), Clause 7.4 (Mandatory Prepayment —
Ongoing Excess Cash Flow) and Clause 7.6 (Mandatory
Prepayments — Asset Dispositions).


 


22.7                          Limitations
on Exchange and Issuance of Capital Stock


 


Except as
provided for in the Borrower’s 2006 Equity Incentive Plan and the “Designated Executive Incentive Award Agreement”, not issue,
sell or otherwise dispose of any class or series of Capital Stock that, by its
terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would
be:


 


(a)                                  convertible
or exchangeable into Financial Indebtedness; or


 


(b)                                 required
to be redeemed or repurchased prior to the date that is six (6) Months
after the Final Maturity Date, including at the option of the holder, in whole
or in part, or has, or upon the happening of an event or passage of time would
have, a redemption or similar payment due.


 


22.8                          Transactions
with Affiliates


 


Not directly or
indirectly:


 


(a)                                  make
any loan or advance to, or purchase or assume any note or other obligation to
or from, any of its officers, directors, shareholders or other Affiliates, or
to or from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates; or


 


(b)                                 enter
into, or be a party to, any other transaction not described in clause (a) above
with any of its Affiliates other than:


 


(i)                                     transactions
permitted by Clause 22.1 (Limitations on Financial
Indebtedness), 22.3 (Limitations on Loans,
Investments and Acquisitions), 22.4 (Limitations
on Mergers and Liquidations) and 22.7 (Limitations
on Exchange and Issuance of Capital Stock);


 


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(ii)                                  transactions
existing on the date of this Agreement and described on Schedule 20 (Transactions With Affiliates);


 


(iii)                               normal
compensation and reimbursement of reasonable expenses of officers and directors
including adoption of a restricted stock bonus or purchase plan;


 


(iv)                              other
transactions in the ordinary course of trading on terms as favourable as would
be obtained by it on a comparable arms-length transaction with an independent,
unrelated third party as determined in good faith by the board of directors of
the Borrower;


 


(v)                                 the
Borrower’s incentive compensation plan described in Schedule 22 (Incentive Plan); and


 


(vi)                              transactions
pursuant to the Finance Documents.


 


22.9                          Certain
Accounting Changes; Organisational Documents


 


(a)                                  Not
change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP.


 


(b)                                 Not
amend, modify or change:


 


(i)                                     its
articles of incorporation (or corporate charter or other similar organizational
documents); or


 


(ii)                                  its
bylaws (or other similar documents),


 


in any such case, in any manner adverse in
any respect to the rights or interests of the Finance Parties.


 


22.10                    Amendments;
Payments and Prepayments of Subordinated Indebtedness


 


(a)                                  Not
amend or modify (or permit the modification or amendment of) any of the terms
or provisions of any Subordinated Indebtedness without the consent of the
COFACE Agent and the Lenders.


 


(b)                                 Except
in the case of the Convertible Notes, not cancel, forgive, make any payment or
prepayment on, or redeem or acquire for value including, without limitation:


 


(i)                                     by
way of depositing with any trustee with respect thereto money or securities
before due for the purpose of paving when due; and


 


(ii)                                  at
the maturity thereof any Subordinated Indebtedness, except refinancings,
refundings, renewals, extensions or exchange of any Subordinated Indebtedness
permitted by Clause 22.1(e) (Limitations on Financial
Indebtedness).


 


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22.11                    Restrictive
Agreements


 


Not enter into or permit to exist any
agreement which impairs or limits the ability of any Subsidiary of the Borrower
to pay dividends to the Borrower.


 


22.12                    Nature
of Business


 


Not alter in
any material respect the character or conduct of the business conducted by the
Borrower and its Subsidiaries as of the date of this Agreement.  Without limiting the foregoing, the Borrower
will not permit or cause any Licence Subsidiary to engage in any line of
business or engage in any other activity (including without limitation
incurring liabilities) other than the ownership of one or more Communications
Licences; provided that, subject to any
restrictions under Applicable Law with respect to Communications Licences, the
Borrower shall cause each of the Licence Subsidiaries to execute and deliver a
Guarantee Agreement and each other Finance Document to which such Licence
Subsidiary is a party.  In no event
shall:


 


(a)                                  any
Licence Subsidiary own any assets other than one (1) or more Communications
Licences (and assets reasonably related thereto to the extent necessary to
comply with all Applicable Law); and


 


(b)                                 neither
the Borrower nor any Subsidiary other than a Licence Subsidiary shall hold any
Communications Licence issued by the FCC.


 


22.13                    Impairment
of Liens


 


Not take or omit to take any action, which
might or would have the result of materially impairing the security interests
created in favour of the COFACE Agent with respect to the Collateral or grant
to any person (other than the COFACE Agent for the benefit of itself and the
Lenders pursuant to the Security Documents) any interest whatsoever in the
Collateral, except for Financial Indebtedness permitted under Clause 22.1
(Limitations on Financial Indebtedness),
Permitted Liens and Asset Dispositions permitted under Clause 22.5 (Limitations on Asset Dispositions).


 


22.14                    Excess
Cash Flow / Purchase of Satellites


 


(a)                                  The
Borrower may not agree to the order, purchase, manufacture or delivery of any
or all Phase 3 Satellites (including acting or failing to act under the
Satellite Construction Contract) unless it has provided a business plan to the
COFACE Agent with respect to those Phase 3 Satellites to be so ordered,
purchased, manufactured or delivered (the “Relevant
Satellites”):


 


(i)                                     prepared
in good faith by the Borrower and based upon reasonable assumptions;


 


(ii)                                  demonstrating
compliance with each of the financial covenants contained in Clause 20 (Financial Covenants) on the date of such business plan and
on a thirty six (36) Month projected basis;


 


(iii)                               demonstrating
that the Borrower has funds immediately available to it in an amount not less
than fifty per cent. (50%)
of the Phase 3 Costs with respect to such Relevant Satellites (the “Relevant Funds”); and


 


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(iv)                              detailing
a fully funded business plan for the Phase 3 Costs and the source of
funding for the remaining fifty per cent.
(50%) of the relevant Phase 3 Costs with respect to such
Relevant Satellites.


 


For the avoidance of doubt, nothing in this Clause
22.14 shall oblige the Borrower to purchase all of the Phase 3 Satellites.


 


(b)                                 The
Relevant Funds may be by way of Subordinated Debt, Capital Stock and/or
available Excess Cash Flow and shall be deposited into the Capital Expenditure
Account and applied solely for the purposes of paying the Phase 3 Costs
with respect to such Relevant Satellites.


 


22.15                    No
Hedging


 


(a)                                  Other
than in accordance with Clause 21.11 (Hedging Agreements)
or by way of the Interest Rate Cap Agreements, the Borrower shall not, without
the consent of the COFACE Agent, enter into any Hedging Agreement.


 


(b)                                 Hedging
Agreements shall not be entered into with any parties other than the Original
Lenders.


 


22.16                    Commercial
Contracts


 


(a)                                  Not
amend or grant any waiver:


 


(i)                                     in
respect of any provision of any Commercial Contract relating to the first
twenty four (24) Satellites, if such amendment or waiver would
or could reasonably be expected to adversely affect the Lenders; and


 


(ii)                                  in
respect of any other provision of any Commercial Contract not referred to in
paragraph (a)(i) above, if such amendment or waiver would or could
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 Not exercise the option to order from the
Supplier up to eighteen (18) additional recurring Spacecraft (as such term is
defined in the Satellite Construction Contract) pursuant to Article 29(B) (Options) of the Satellite Construction
Contract without the prior written consent of the COFACE Agent.


 


23.                               EVENTS OF DEFAULT


 


Each of the events or circumstances set out
in Clause 23 (Events of Default)
is an Event of Default.


 


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23.1                           Non-Payment


 


An Obligor
does not pay on the due date any amount payable pursuant to a Finance Document
at the place and in the currency in which it is expressed to be payable unless:


 


(a)                                  its
failure to pay is caused by:


 


(i)                                     administrative
or technical error; or


 


(ii)                                  a
Disruption Event; and


 


(b)                                 payment
is made within:


 


(i)                                     in
the case of paragraph (a)(i) above:


 


(A)                              in
the case of payments of principal and interest, within two (2) Business
Days of its due date; or


 


(B)                                in
the case of any other payment, within four (4) Business Days of its due
date; and


 


(ii)                                  in
the case of paragraph (a)(ii) above:


 


(A)                              in
the case of payments of principal and interest, within three (3) Business
Days of the cessation (or reasonable avoidance) of such Disruption Event; or


 


(B)                                in
the case of any other payment, within five (5) Business Days of the
cessation (or reasonable avoidance) of such Disruption Event.


 


23.2                           Financial
Covenants


 


(a)                                  Any
requirement of Clause 20 (Financial Covenants)
is not satisfied.


 


(b)                                 No
Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within thirty (30) days of
the COFACE Agent giving notice to the Borrower or the Borrower becoming aware
of the failure to comply.


 


(c)                                  No
Event of Default under paragraph (a) above will occur if no later than the
date that is thirty (30) days after the Relevant Period, the Borrower has
received an Equity Cure Contribution (a “Relevant
Contribution”) and the Borrower satisfies the relevant covenant
recalculated to take into account all or part of such Relevant Contribution, provided that, the Borrower may not cure a
breach of a relevant covenant as contemplated under this paragraph (c) for
more than two (2) successive Relevant Periods of calculation or for more
than five (5) Relevant Periods in aggregate prior to the Final Maturity
Date.


 


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23.3                           Other
Obligations


 


(a)                                  An
Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 7.1 (Payments to
the Convertible Note Reserve Account) of the Accounts Agreement,
Clause 23.1 (Non-Payment) and Clause 23.2
(Financial Covenants)).


 


(b)                                 No
Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within ten (10) Business
Days of the COFACE Agent giving notice to the Borrower or the Borrower becoming
aware of the failure to comply.


 


23.4                           Misrepresentation


 


Any representation or statement made by an
Obligor in the Finance Documents or any other document delivered by or on
behalf of an Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading when made or deemed to be made and,
if capable of remedy, is not remedied within twenty (20) Business Days of
the COFACE Agent giving notice to the Borrower or an Obligor becoming aware of
such misrepresentation.


 


23.5                           Cross
Default


 


(a)                                  Any
Financial Indebtedness of any Material Subsidiary is not paid when due nor within
any originally applicable grace period.


 


(b)                                 Any
Financial Indebtedness of any Material Subsidiary is declared to be or
otherwise becomes due and payable prior to its specified maturity as a result
of an event of default (however described).


 


(c)                                  Any
commitment for any Financial Indebtedness of any Material Subsidiary is
cancelled or suspended by a creditor of any Material Subsidiary as a result of
an event of default (however described).


 


(d)                                 Any
creditor of any Material Subsidiary becomes entitled to declare any Financial
Indebtedness of any Material Subsidiary due and payable prior to its specified
maturity as a result of an event of default (however described).


 


(e)                                  No
Event of Default will occur under this Clause 23.5 if the aggregate amount
of Financial Indebtedness or commitment for Financial Indebtedness falling
within paragraphs (a) to (d) above is less than five million
Dollars (US$5,000,000) (or its equivalent in any other currency or currencies).


 


23.6                           Insolvency


 


Any Material
Subsidiary shall:


 


(a)                                  commence
a voluntary case (or analogous motion) under the federal bankruptcy laws or
under other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganisation, winding-up or adjustment of debts or analogous proceedings;


 


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(b)                                 file
a petition (or analogous motion) seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganisation,
winding-up, composition for adjustment of debts or analogous proceedings;


 


(c)                                  consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws;


 


(d)                                 apply
for or consent to, or fail to consent in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of a substantial part of its property, domestic or
foreign;


 


(e)                                  admit
in writing its inability to pay its debts as they become due;


 


(f)                                    make
a general assignment for the benefit of creditors;


 


(g)                                 take
any corporate action for the purpose of authorising any of the foregoing; or


 


(h)                                 suspend
or threaten to suspend making payment on any of its debts or by reason of
actual or anticipated financial difficulties commences negotiations with
one (1) or more of its creditors with a view to rescheduling any of
its indebtedness (other than the Finance Parties in connection with this
Agreement).


 


23.7                           Insolvency
Proceedings


 


A case or
other proceeding shall be commenced against a Material Subsidiary in any court
of competent jurisdiction and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, seeking:


 


(a)                                  relief
under the federal bankruptcy laws or under other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganisation, winding-up or adjustment of
debts or analogous proceedings; or


 


(b)                                 the
appointment of a trustee, receiver, custodian, liquidator or the like for a
Material Subsidiary or for all or any substantial part of their respective
assets, domestic or foreign, or an order granting the relief requested in such
case or proceeding (including, but not limited to, an order for relief under
such federal bankruptcy laws or under other laws, domestic or foreign, relating
to bankruptcy, insolvency, reorganisation, winding-up or adjustment of debts or
analogous proceedings) shall be entered.


 


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23.8                           Creditors’
Process


 


Any attachment,
sequestration, distress or execution or any analogous process in any
jurisdiction affects any asset or assets of a Material Subsidiary having an
aggregate value of one million Dollars (US$1,000,000) and is not discharged
within twenty (20) Business Days or such longer period of time if such
Material Subsidiary is contesting such process in good faith provided that, such process:


 


(a)                                  is
in any event discharged within one hundred and eighty (180) days; and


 


(b)                                 does
not have or could not reasonably be likely to have a Material Adverse Effect.


 


23.9                           Unlawfulness
and Invalidity


 


(a)                                  It
is or becomes unlawful for an Obligor, or any other member of the Group party
to an Acceptable Intercreditor Agreement, to perform any of its obligations
under the Transaction Documents or any Acceptable Intercreditor Agreement to
which it is a party or any Lien created or expressed to be created or evidenced
by a Security Document ceases to be effective or any subordination under any
Acceptable Intercreditor Agreement is or becomes unlawful.


 


(b)                                 Any
obligation or obligations of any Obligor under any Finance Document, or any
other member of the Group under an Acceptable Intercreditor Agreement, are not
or cease to be legal, valid, binding or enforceable and the cessation individually
or cumulatively materially and adversely affects the interests of the Lenders
under the Finance Documents or Acceptable Intercreditor Agreement.


 


(c)                                  Any
Transaction Document is terminated or ceases to be in full force and effect or
any Lien or subordination created under a Security Document or an Acceptable
Intercreditor Agreement ceases to be legal, valid, binding, enforceable or
effective or is alleged by a party to it (other than a Finance Party) to be
ineffective.


 


(d)                                 No
Event of Default under paragraphs (b) and (c) above will occur
in respect of a Finance Document (other than this Agreement and an Acceptable
Intercreditor Agreement) if the failure to comply is capable of remedy and is
remedied within three (3) Business Days of the COFACE Agent giving notice
to the Borrower or the Borrower becoming aware of the failure to comply.


 


23.10                     Material
Adverse Change


 


Any event or circumstance occurs which the
Majority Lenders reasonably believe has or is reasonably likely to have a
Material Adverse Effect provided that,
no Event of Default shall occur under this Clause 23.10 if such event or
circumstance is capable of being remedied and is remedied to the satisfaction
of the COFACE Agent within thirty (30) days of the COFACE Agent giving
notice to the Borrower or the Borrower the becoming aware of the occurrence of
such event or circumstance.


 


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23.11                     Repudiation
and Rescission of Agreements


 


An Obligor (or any other relevant party)
rescinds or purports to rescind or repudiates or purports to repudiate a
Transaction Document or evidences an intention to rescind or repudiate a
Transaction Document, which has or is likely to have a Material Adverse Effect.


 


23.12                     Expropriation


 


The authority or ability of a Material
Subsidiary to conduct its business is limited or wholly or substantially
curtailed by any seizure, expropriation, nationalisation, intervention,
restriction or other action by or on behalf of any governmental, regulatory or
other authority or other person in relation to any Material Subsidiary or any
of its assets.


 


23.13                     Litigation


 


Any litigation, arbitration,
administrative, governmental, regulatory or other investigations, proceedings
or disputes are commenced or threatened against any Material Subsidiary or its
assets which has or is reasonably likely to have a Material Adverse Effect
unless such action is frivolous or vexatious.


 


23.14                     Audit
Qualification


 


The auditors of the Group qualify the
audited annual consolidated financial statements of the Group to an extent that
has or could reasonably by expected to have a Material Adverse Effect.


 


23.15                     ERISA
Termination Event


 


The occurrence
of any of the following events:


 


(a)                                  any
Obligor or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Multiemployer Plan
or Section 412 of the Code, or Section 302 of ERISA, such Obligor or
ERISA Affiliate is required to pay as contributions thereto;


 


(b)                                 an “unpaid minimum required contribution” or an “accumulated funding deficiency” (as defined or otherwise set
forth in Section 4971 of the Code or Part 3 of Subtitle B of
Title I of ERISA) in excess of two million five hundred thousand Dollars
(US$2,500,000) occurs or exists, whether or not waived, with respect to any
Pension Plan;


 


(c)                                  the
Borrower or any ERISA Affiliate as an employer under one (1) or more
Multiemployer Plans makes a complete or partial withdrawal from any such
Multiemployer Plan and the plan sponsor of such Multiemployer Plan notifies
such withdrawing employer that such employer has incurred a withdrawal
liability requiring payments in an amount exceeding two million five hundred
thousand Dollars (US$2,500,000); or


 


(d)                                 (i)            any ERISA Termination Event;


 


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(ii)                                  any Unfunded Pension Liability (taking into
account only Pension Plans with positive Unfunded Pension Liabilities); or


 


(iii)                               any potential withdrawal liability under Section 4201
of ERISA, if each Obligor and ERISA Affiliate were to withdraw completely from
any and all Multiemployer Plans,


 


and the events described in
paragraphs (d)(i), (ii) and (iii), either individually or in the
aggregate, have resulted, or would be reasonably expected to result, in a
material liability of any Obligor or any ERISA Affiliate.


 


23.16                     Environmental


 


Any one (1) or more Environmental
Claims shall have been asserted against the Borrower or any of its
Subsidiaries; the Borrower or any of its Subsidiaries would be reasonably
likely to incur liability as a result thereof; and such liability would be
reasonably likely, individually or in the aggregate, to have a Material Adverse
Effect.


 


23.17                     Failure
to Bring Satellites in Service


 


The Borrower
has failed to achieve:


 


(a)                                  Individual
In-Orbit Acceptance with respect to six (6) Satellites delivered under the
Satellite Construction Contract by 30 September 2010; or


 


(b)                                 Final
In-Orbit Acceptance by 1 January 2012.


 


23.18                     Debt
Service Reserve Account


 


(a)                                  At
any time after the date of this Agreement the Debt Service Reserve Account is
not fully funded with the DSRA Required Balance within five (5) Business
Days of any drawdown of such Project Account.


 


(b)                                 At
any time the Debt Service Reserve Account is not fully funded with the DSRA
Required Cash Balance within five (5) Business Days of any drawdown of
such Project Account.


 


23.19                     Contingent
Equity Required Balance


 


The sum of the Thermo Contingent Equity
Account and the Borrower Contingent Equity Account is at any time prior to the
Contingent Equity Release Date less than the
Contingent Equity Required Balance.


 


23.20                     COFACE
Insurance Policy


 


The credit insurance cover under the COFACE
Insurance Policy extended by COFACE in favour of the Lenders in respect of each
Facility ceases to be in full force and effect for a reason attributable to the
Borrower.


 


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24.                               REMEDIES UPON AN EVENT OF DEFAULT


 


On and at any
time after the occurrence of an Event of Default which is continuing, the
COFACE Agent may, and it shall if so directed by the Majority Lenders, by
notice to the Borrower:


 


(a)                                  cancel
the Total Commitments whereupon they shall immediately be cancelled and no
further Utilisations shall be requested or made under a Facility; and/or


 


(b)                                 declare
that all or part of the Loans, together with accrued interest, and all other
amounts accrued or outstanding under the Finance Documents be immediately due
and payable, whereupon the same shall become immediately due and payable;
and/or


 


(c)                                  declare
that all or part of the Loans are payable on demand, whereupon they shall
become immediately due and payable; and/or


 


(d)                                 exercise
or direct the Security Agent to exercise any or all of its rights, remedies,
powers or discretions under the Finance Documents; and/or


 


(e)                                  exercise
all other contractual and legal rights of the Finance Parties in respect of any
Liens; and/or


 


(f)                                    take
any other action and pursue any other remedies available under Applicable Law
or under the Finance Documents.


 


25.                               SECURITY


 


Unless expressly provided to the contrary,
the Security Agent holds any security created by a Security Document for the
Finance Parties on the terms set out in Schedule 6 (The Security
Agent).


 


26.                               CHANGES TO THE LENDERS


 


26.1                           Assignments
and Transfers by the Lenders


 


Subject to
this Clause 26 (Changes to the Lenders),
a Lender (the “Existing Lender”) may:


 


(a)                                  assign
any of its rights; or


 


(b)                                 transfer
by novation any of its rights and obligations,


 


to another bank or financial institution or
to a trust, fund or other entity which is regularly engaged in or established
for the purpose of making, purchasing or investing in loans, securities or
other financial assets (the “New Lender”).


 


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26.2                           Conditions
of Assignment or Transfer


 


(a)                                  The
consent of the Borrower is required for an assignment of transfer by an
Existing Lender, provided that no consent shall be
required to be obtained from the Borrower if such transfer or assignment is:


 


(i)                                     to a
Qualifying Lender or to an existing Lender (or any of its Affiliates);


 


(ii)                                  made
at any time when a Default has occurred and is continuing; and/or


 


(iii)                               required
by any Applicable Law.


 


(b)                                 The
consent of the Borrower to an assignment or transfer must not be unreasonably
withheld or delayed.  The Borrower will
be deemed to have given its consent five (5) Business Days after the
Existing Lender has requested it unless the consent is expressly refused by the
Borrower within that time.


 


(c)                                  The
consent of the Borrower to an assignment must not be withheld solely because
the assignment or transfer may result in an increase to the Mandatory Cost.


 


(d)                                 An
assignment will only be effective on:


 


(i)                                     receipt
by the COFACE Agent of written confirmation from the New Lender (in form and substance
satisfactory to the COFACE Agent) that the New Lender will assume the same
obligations to the other Finance Parties as it would have been under if it was
an Original Lender;


 


(ii)                                  performance
by the COFACE Agent of all necessary “know your customer”
or other similar checks under all applicable laws and regulations in relation
to such assignment to a New Lender, the completion of which the COFACE Agent
shall promptly notify to the Existing Lender and the New Lender; and


 


(iii)                               when
the COFACE Agent updates the Register (as defined in Clause 26.8 (Register) below) in accordance with the provisions of
Clause 26.8 (Register) below.


 


(e)                                  A
transfer will only be effective if the procedure set out in Clause 26.5 (Procedure for Transfer) is complied with.


 


(f)                                    If:


 


(i)                                     a
Lender assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and


 


(ii)                                  as a result of circumstances existing at
the date the assignment, transfer or change occurs, an Obligor would be obliged
to make a payment to the New Lender or Lender acting through its new Facility
Office under 


 


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Clause 13
(Tax gross-up and indemnities) or
Clause 14 (Increased Costs), 


 


then
the New Lender or Lender acting through its new Facility Office is only
entitled to receive payment under those Clauses to the same extent as the
Existing Lender or Lender acting through its previous Facility Office would
have been if the assignment, transfer or change had not occurred.


 


26.3                           Assignment
or Transfer Fee


 


The New Lender shall, on the date upon
which an assignment or transfer takes effect, pay to the COFACE Agent (for its
own account) a fee of two thousand Dollars (US$2,000).


 


26.4                           Limitation
of Responsibility of Existing Lenders


 


(a)                                  Unless
expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:


 


(i)                                     the
legality, validity, effectiveness, adequacy or enforceability of the Finance Documents
or any other documents;


 


(ii)                                  the
financial condition of the Borrower or the status of the Project;


 


(iii)                               the
performance and observance by the Borrower of its obligations under the Finance
Documents or any other documents; or


 


(iv)                              the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,


 


and any representations or warranties
implied by law are excluded.


 


(b)                                 Each
New Lender confirms to the Existing Lender and the other Finance Parties that
it:


 


(i)                                     has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and


 


(ii)                                  will
continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.


 


(c)                                  Nothing
in any Finance Document obliges an Existing Lender to:


 


(i)                                     accept
a re-transfer from a New Lender of any of the rights and obligations assigned
or transferred under this Clause 26; or


 


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(ii)                                  support
any losses directly or indirectly incurred by the New Lender by reason of the
non-performance by any Obligor of its obligations under the Finance Documents
or otherwise.


 


26.5                           Procedure
for Transfer


 


(a)                                  Subject
to the conditions set out in Clause 26.2 (Conditions
of Assignment or Transfer) a transfer is effected in accordance with
paragraph (c) below when the COFACE Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and the
New Lender and updates the Register (as defined in Clause 26.8 (Register) below) in accordance with the provisions of
Clause 26.8 (Register) below.  The COFACE Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt
by it of a duly completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance with the terms of
this Agreement, execute that Transfer Certificate.


 


(b)                                 The
COFACE Agent shall only be obliged to execute a Transfer Certificate delivered
to it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary “know your customer”
or other similar checks under all applicable laws and regulations in relation
to the transfer to such New Lender.


 


(c)                                  On
the Transfer Date:


 


(i)                                     to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                                  the
Borrower and the New Lender shall assume obligations towards one another and/or
acquire rights against one another which differ from the Discharged Rights and
Obligations only insofar as that Obligor and the New Lender have assumed and/or
acquired the same in place of that Obligor and the Existing Lender;


 


(iii)                               the
COFACE Agent, the Security Agent, each Mandated Lead Arranger, the New Lender
and other Lenders shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had the New Lender
been an Original Lender with the rights and/or obligations acquired or assumed
by it as a result of the transfer and to that extent the COFACE Agent, each Mandated
Lead Arranger, the Security Agent and the Existing Lender shall each be
released from further obligations to each other under the Finance Documents;
and


 


(iv)                              the
New Lender shall become a Party as a “Lender”.


 


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(d)                                 For
the avoidance of doubt, for the purposes of article 1278 of
the French Civil Code and only in relation to the Pledge of Bank Accounts, it
is expressly agreed that the Pledge of Bank Accounts shall be preserved for the
benefit of the New Lender and all other Finance Parties.


 


26.6                          Copy
of Transfer Certificate to Borrower


 


The COFACE Agent shall, as soon as
reasonably practicable after it has executed a Transfer Certificate, send to
the Borrower a copy of that Transfer Certificate.


 


26.7                          Disclosure
of information


 


Any Lender may
disclose to any of its Affiliates and any other person:


 


(a)                                  to
(or through) whom that Lender assigns or transfers (or may potentially assign
or transfer) all or any of its rights and obligations under this Agreement;


 


(b)                                 with
(or through) whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or any Obligor; or


 


(c)                                  to
whom, and to the extent that, information is required to be disclosed by any
applicable law or regulation,


 


any information about the Borrower, Thermo,
the Group and the Finance Documents as that Lender shall consider appropriate
if, in relation to paragraphs (a) and
(b) above, the person to
whom the information is to be given has entered into a Confidentiality
Undertaking.


 


26.8                          Register


 


(a)                                  The
Borrower hereby designates the COFACE Agent, and the COFACE Agent agrees, to
serve as the Borrower’s agent, solely for purposes of this Clause 26.8, to
maintain a register (the “Register”)
on which it will record the Commitments from time to time of each of the
Lenders and each repayment in respect of the principal amount of the Loans of
each Lender.


 


(b)                                 Failure
to make any such recordation, or any error in such recordation shall not affect
the Borrower’s obligations in respect of such Loans.


 


(c)                                  With
respect to any Lender, the transfer or assignment of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until:


 


(i)                                     the
Transfer Certificate has been executed by the COFACE Agent; and


 


(ii)                                  such
transfer is recorded on the Register maintained by the COFACE Agent with
respect to ownership of such Commitments and Loans.  Prior to such recordation all amounts owing
to the transferor with respect to such Commitments and Loans shall remain owing
to the transferor.


 


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(d)                                 The
registration of an assignment or transfer of all or part of any Commitments and
Loans shall be recorded by the COFACE Agent on the Register only upon the
acceptance by the COFACE Agent of a properly executed and delivered Transfer
Certificate pursuant to this Clause 26.8.


 


(e)                                  The
Borrower agrees to indemnify the COFACE Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature which may be
imposed upon, asserted against or incurred by the COFACE Agent in performing
its duties under this Clause 26.8 except to the extent resulting from the
gross negligence or wilful misconduct of the COFACE Agent (as determined by a
court of competent jurisdiction in a final and non-appealable decision).


 


27.                               CHANGES TO THE BORROWER


 


The Borrower may not assign any of its
rights or transfer any of its rights or obligations under the Finance
Documents.


 


28.                               ROLE OF THE COFACE AGENT, THE SECURITY AGENT AND THE
MANDATED LEAD ARRANGERS


 


28.1                          Appointment
of the COFACE Agent and the Security Agent


 


(a)                                  Each
other Finance Party (other than the Security Agent) appoints the COFACE Agent
to act as its agent under and in connection with the Finance Documents.


 


(b)                                 Each
other Finance Party (other than the COFACE Agent) appoints the Security Agent
to act as its security agent and security trustee under and in connection with
the Finance Documents.


 


(c)                                  Each
other Finance Party authorises the COFACE Agent and the Security Agent to
exercise the rights, powers, authorities and discretions specifically given to
the COFACE Agent and the Security Agent under or in connection with the Finance
Documents together with any other incidental rights, powers, authorities and
discretions.


 


(d)                                 Each
other Finance Party (other than the COFACE Agent) appoints the Security Agent
to enforce any Security expressed to be created under the Security Documents as
agent (or as otherwise provided) on its behalf, subject always to the terms of
the Finance Documents.


 


28.2                          Appointment
of the Security Agent (France)


 


(a)                                  Each
Finance Party (other than the Security Agent) as “mandants” under French law irrevocably:


 


(i)                                     appoints
the Security Agent to act as its agent (“mandataire”
under French law) under and in connection with the Borrower Pledge of Bank
Accounts, the Thermo Pledge of Bank Account and each Delegation Agreement (the “French Security Documents”); and


 


140





















 


(ii)                                  authorises
the Security Agent to execute for and on its behalf the French Security
Documents and to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in connection with
the French Security Documents, together with any other rights, powers and
discretions which are incidental thereto and to give a good discharge for any
moneys payable under the French Security Documents.


 


(b)                                 The
Security Agent will act solely for itself and as agent for the other Finance
Parties in carrying out its functions as agent under the French Security
Documents.


 


(c)                                  The
relationship between the Finance Parties (other than the Security Agent) and
the Security Agent is that of principal (“mandant”
under French law) and agent (“mandataire”
under French law) only.  The Security
Agent shall not have, nor be deemed to have, assumed any obligations to, or trust
or fiduciary relationship with, any party to this Agreement other than those
for which specific provision is made by the French Security Documents and, to
the extent permissible under French law, the other provisions of this
Agreement, which shall be deemed to be incorporated in this Clause 28.2,
where reference is made to the French Security Documents.


 


(d)                                 Notwithstanding
Clause 39 (Governing law), this
Clause 28.2 shall be governed by, and construed in accordance with, French
law.  Notwithstanding Clause 40.1 (Jurisdiction), any dispute arising out of this
Clause 28.2 shall be submitted to the Tribunal de Commerce de
Paris.


 


(e)                                  Each
Finance Party, the Security Agent and the Borrower irrevocably acknowledge that
the existence and extent of the Security Agent’s authority resulting from this
Clause 28.2 and the effects of the Security Agent’s exercise of this
authority shall be governed by French law.


 


28.3                          Duties
of the COFACE Agent and the Security Agent


 


(a)                                  Each
of the COFACE Agent and the Security Agent shall promptly forward to a Party
the original or a copy of any document which is delivered to the COFACE Agent
or the Security Agent for that Party by any other Party.


 


(b)                                 Except
where a Finance Document specifically provides otherwise, neither the COFACE
Agent nor the Security Agent is obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another Party.


 


(c)                                  If
the COFACE Agent or the Security Agent receives notice from a Party referring
to this Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Finance Parties.


 


(d)                                 If
the COFACE Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the 


 


141





















 


 


COFACE Agent, the Security Agent or a Mandated Lead
Arranger) under this Agreement it shall promptly notify the other Finance
Parties.


 


(e)                                  The
COFACE Agent’s and the Security Agent’s duties under the Finance Documents are
solely mechanical and administrative in nature.


 


28.4                          Role
of the Mandated Lead Arrangers


 


Except as specifically provided in the
Finance Documents, no Mandated Lead Arranger has any obligations of any kind to
any other Party under or in connection with any Finance Document.


 


28.5                          No
Fiduciary Duties


 


(a)                                  Nothing
in this Agreement constitutes the COFACE Agent, the Security Agent (except as
expressly provided in the Finance Documents) or a Mandated Lead Arranger as a
trustee or fiduciary of any other person.


 


(b)                                 Neither
the COFACE Agent, the Security Agent (except as expressly provided in the
Finance Documents) nor the Mandated Lead Arrangers shall be bound to account to
any Lender for any sum or the profit element of any sum received by it for its
own account.


 


28.6                          Business
with the Group


 


The COFACE Agent, the Security Agent and
the Mandated Lead Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member of
the Group.


 


28.7                          Rights
and Discretions of the COFACE Agent and the Security Agent


 


(a)                                  Each
of the COFACE Agent and the Security Agent may rely on:


 


(i)                                     any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)                                  any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.


 


(b)                                 Each
of the COFACE Agent and the Security Agent may assume (unless it has received
notice to the contrary in its capacity as agent for the Lenders) that:


 


(i)                                     no
Default has occurred (unless it has actual knowledge of a Default arising under
Clause 23.1 (Non-Payment));


 


(ii)                                  any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and


 


(iii)                               any
notice or request made by the Borrower (other than a Utilisation Request) is
made on behalf of and with the consent and knowledge of the Borrower.


 


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(c)                                  Each
of the COFACE Agent and the Security Agent may engage, pay for and rely on the
advice or services of any lawyers, accountants, surveyors or other experts.


 


(d)                                 Each
of the COFACE Agent and the Security Agent may act in relation to the Finance
Documents through its personnel and agents.


 


(e)                                  Each
of the COFACE Agent and the Security Agent may disclose to any other Party any
information it reasonably believes it has received as agent under this
Agreement.


 


(f)                                    Notwithstanding
any other provision of any Finance Document to the contrary, neither the COFACE
Agent, the Security Agent nor a Mandated Lead Arranger is obliged to do or omit
to do anything if it would or might in its reasonable opinion constitute a
breach of any law or a breach of a fiduciary duty or duty of confidentiality.


 


(g)                                 Save
as expressly otherwise provided in any Finance Document, the Security Agent may
exercise its trusts, powers and authorities under the Finance Documents in its
absolute and unconditional discretion.


 


28.8                          Majority
Lenders’ Instructions


 


(a)                                  Unless
a contrary indication appears in a Finance Document, each of the COFACE Agent
and the Security Agent shall:


 


(i)                                     exercise
any right, power, authority or discretion vested in it in accordance with any
instructions given to it by the Majority Lenders (or, if so instructed by the
Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it); and


 


(ii)                                  not
be liable for any act (or omission) if it acts (or refrains from taking any
action) in accordance with an instruction of the Majority Lenders.


 


(b)                                 Unless
a contrary indication appears in a Finance Document, any instructions given by
the Majority Lenders will be binding on all the Finance Parties.


 


(c)                                  Each
of the COFACE Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if appropriate,
the Lenders) until it has received such security as it may require for any
cost, loss or liability (together with any associated VAT) which it may incur
in complying with the instructions.


 


(d)                                 In
the absence of instructions from the Majority Lenders, (or, if appropriate, the
Lenders) each of the COFACE Agent and the Security Agent may act (or refrain
from taking action) as it considers to be in the best interest of the Lenders.


 


(e)                                  Neither
the COFACE Agent nor the Security Agent is authorised to act on behalf of a
Lender (without first obtaining that Lender’s consent) in any legal or arbitration
proceedings relating to any Finance Document.


 


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(f)                                    The
Security Agent may assume (unless it has received notice to the contrary in its
capacity as Security Agent) that all instructions given to it by the COFACE
Agent, if required to be approved by the Majority Lenders, have been so
approved.


 


28.9                          Responsibility
for Documentation


 


None of the
COFACE Agent, the Security Agent nor a Mandated Lead Arranger:


 


(a)                                  is
responsible for the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by the COFACE Agent, the Security Agent, a
Mandated Lead Arranger, the Borrower or any other person given in or in
connection with any Finance Document; or


 


(b)                                 is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection
with any Finance Document.


 


28.10                    Exclusion
of Liability


 


(a)                                  Without
limiting paragraph (b), neither the COFACE Agent nor the Security Agent
will be liable (including, without limitation, for negligence or any other
category of liability whatsoever) for any action taken by it under or in
connection with any Transaction Document, unless directly caused by its gross
negligence or wilful misconduct.


 


(b)                                 No
Party (other than the COFACE Agent or the Security Agent) may take any
proceedings against any officer, employee or agent of the COFACE Agent or the
Security Agent in respect of any claim it might have against the COFACE Agent
or the Security Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any officer,
employee or agent of the COFACE Agent or the Security Agent may rely on this
Clause subject to Clause 1.5 (Third Party Rights)
and the provisions of the Third Parties Act.


 


(c)                                  Neither
the COFACE Agent nor the Security Agent will be liable for any delay (or any
related consequences) in crediting an account with an amount required under the
Finance Documents to be paid by it if it has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by it for that
purpose.


 


(d)                                 Nothing
in this Agreement shall oblige the COFACE Agent, the Security Agent or a
Mandated Lead Arranger to carry out any “know your customer”
or other checks in relation to any person on behalf of any Lender and each
Lender confirms to the COFACE Agent, the Security Agent and each Mandated Lead
Arranger that it is solely responsible for any such checks it is required to
carry out and that it may not rely on any statement in relation to such checks
made by the COFACE Agent, the Security Agent and a Mandated Lead Arranger.


 


144





















 


28.11                    Lenders’
Indemnity to the COFACE Agent and the Security Agent


 


Each Lender shall (in proportion to its
share of the Total Commitments or, if the Total Commitments are then zero, to
its share of the Total Commitments immediately prior to their reduction to
zero) indemnify each of the COFACE Agent and the Security Agent, within three (3) Business
Days of demand, against any cost, loss or liability (including, without
limitation, for negligence or any other category of liability whatsoever)
incurred by the COFACE Agent and the Security Agent (otherwise than by reason
of its gross negligence or wilful misconduct) notwithstanding its negligence,
gross negligence or any other category of liability whatsoever but not
including any claim based on the fraud of the COFACE Agent or the Security
Agent in acting as COFACE Agent or the Security Agent under the Finance
Documents (unless the COFACE Agent or the Security Agent has been reimbursed by
the Borrower pursuant to a Finance Document).


 


28.12                    Resignation
of the COFACE Agent and the Security Agent


 


(a)                                  Each
of the COFACE Agent and the Security Agent may resign and appoint one of its
Affiliates as successor by giving notice to the other Finance Parties and the
Borrower.


 


(b)                                 Alternatively
each of the COFACE Agent and the Security Agent may resign by giving notice to
the other Finance Parties and the Borrower, in which case the Majority Lenders (after
consultation with the Borrower) may appoint a successor COFACE Agent or
Security Agent (as the case may be).


 


(c)                                  If
the Majority Lenders have not appointed a successor COFACE Agent or Security
Agent in accordance with Clause 28.12(b) within thirty (30) days
after notice of resignation was given, the COFACE Agent or the Security Agent
(after consultation with the Borrower) may appoint a successor COFACE Agent or
Security Agent.


 


(d)                                 The
retiring COFACE Agent or Security Agent shall, at its own cost, make available
to its successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its functions
as COFACE Agent or Security Agent under the Finance Documents.


 


(e)                                  The
COFACE Agent’s resignation notice shall only take effect upon the appointment
of a successor.


 


(f)                                    The
Security Agent’s resignation notice shall only take effect upon:


 


(i)                                     the
appointment of a successor; and


 


(ii)                                  the
transfer of all of any Lien expressed to be created under the Security
Documents to that successor.


 


(g)                                 Upon
the appointment of a successor, the retiring COFACE Agent or Security Agent
shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this
Clause 28.12.  Its successor and
each of the other Parties shall have the same rights and 


 


145





















 


obligations amongst themselves as they would have
had if such successor had been an original Party.


 


(h)                                 After
consultation with the Borrower, the Majority Lenders may, by notice to the
COFACE Agent or the Security Agent (as the case may be), require it to resign
in accordance with Clause 28.12(a). 
In this event, the COFACE Agent or the Security Agent (as the case may
be) shall resign in accordance with Clause 28.12(a).


 


28.13                    Confidentiality


 


(a)                                  In
acting as agent for the Finance Parties, each of the COFACE Agent and the
Security Agent shall be regarded as acting through its agency division which shall
be treated as a separate entity from any other of its divisions or departments.


 


(b)                                 If
information is received by another division or department of the COFACE Agent
or the Security Agent, it may be treated as confidential to that division or
department and neither the COFACE Agent nor the Security Agent shall be deemed
to have notice of it.


 


28.14                    Relationship
with the Lenders


 


(a)                                  The
COFACE Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received not
less than five (5) Business Days prior notice from that Lender to the
contrary in accordance with the terms of this Agreement.


 


(b)                                 Each
Lender shall supply the COFACE Agent with any information required by the
COFACE Agent in order to calculate the Mandatory Cost in accordance with Schedule
4 (Mandatory Cost Formula).


 


28.15                    Credit
Appraisal by the Lenders


 


Without
affecting the responsibility of the Borrower for information supplied by it or
on its behalf in connection with any Finance Document, each Lender confirms to
the COFACE Agent, the Security Agent and the Mandated Lead Arrangers that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:


 


(a)                                  the
financial condition, status and nature of the Group;


 


(b)                                 the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document;


 


(c)                                  whether
that Lender has recourse, and the nature and extent of that recourse, against
any Party or any of its respective assets under or in connection with any
Finance Document, the transactions contemplated by the Finance 


 


146





















 


Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and


 


(d)                                 the
adequacy, accuracy and/or completeness of any information provided by the
COFACE Agent, the Security Agent, any Party or by any other person under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document.


 


28.16                    Reference
Banks


 


If a Reference Bank who is also a Lender
(or, if a Reference Bank is not a Lender, the Lender of which it is an
Affiliate) ceases to be a Lender, the COFACE Agent shall (in consultation with
the Borrower) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.


 


28.17                    COFACE
Agent’s and Security Agent’s Management Time


 


Any amounts payable to the COFACE Agent or
the Security Agent (as the case may be) under Clause 15.3 (Indemnity to the COFACE Agent), Clause 15.4 (Indemnity to the Security Agent) and Clause 17 (Costs and expenses) shall include the cost of utilising the
COFACE Agent’s or the Security Agent’s management time or other resources and
will be calculated on the basis of such reasonable daily or hourly rates as the
COFACE Agent or the Security Agent may notify to the Borrower and the Lenders.


 


28.18                    Deduction
from Amounts Payable by the COFACE Agent and the Security Agent


 


If any Party owes an amount to the COFACE
Agent or the Security Agent under the Finance Documents, the COFACE Agent or
the Security Agent (as the case may be) may, after giving notice to that Party
and provided that this will not result in
breach of any applicable currency control regulations by the Borrower, deduct
an amount not exceeding that amount from any payment to that Party which the
COFACE Agent or the Security Agent would otherwise be obliged to make under the
Finance Documents and apply the amount deducted in or towards satisfaction of
the amount owed.  For the purposes of the
Finance Documents, that Party shall be regarded as having received any amount
so deducted.


 


28.19                    Security
Agent


 


(a)                                  The
provisions of Schedule 6 (The Security Agent)
shall bind each Party.


 


(b)                                 The
Security Agent shall promptly transfer to the COFACE Agent any amounts received
by it under the Finance Documents for application by the COFACE Agent in
accordance with the order set out in Clause 31.6 (Partial
Payments).  The Security Agent
shall be obliged to make such transfer only to the extent it has actually
received such amount.


 


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(c)                                  At
the request of the Security Agent, the COFACE Agent shall notify the Security
Agent, and shall provide a copy of such notification to the Borrower, of
amounts due to any Party under this Agreement, and the due date for such
amounts.  The Security Agent may accept
such notifications as conclusive evidence of the matters to which they relate.


 


28.20                    No
Independent Power


 


(a)                                  The
Lenders shall not have any independent power to enforce, or have recourse to,
any of the Liens expressed to be created under the Security Documents, or to
exercise any rights or powers arising under the Security Documents except
through the Security Agent.


 


(b)                                 This
Clause is for the benefit of the Finance Parties only.


 


29.                               CONDUCT OF BUSINESS BY THE FINANCE PARTIES


 


No provision
of this Agreement will:


 


(a)                                  interfere
with the right of any Finance Party to arrange its affairs (tax or otherwise)
in whatever manner it thinks fit;


 


(b)                                 oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or


 


(c)                                  oblige
any Finance Party to disclose any information relating to its affairs (tax or
otherwise) or any computations in respect of Tax.


 


30.                               SHARING AMONG THE FINANCE PARTIES


 


30.1                          Payments
to Finance Parties


 


If a Finance
Party (a “Recovering Finance Party”) receives or
recovers any amount from an Obligor other than in accordance with
Clause 31  (Payment
Mechanics) and applies that amount to a payment due under the
Finance Documents then:


 


(a)                                  the
Recovering Finance Party shall, within three (3) Business Days, notify
details of the receipt or recovery, to the COFACE Agent;


 


(b)                                 the
COFACE Agent shall determine whether the receipt or recovery is in excess of
the amount the Recovering Finance Party would have been paid had the receipt or
recovery been received or made by the COFACE Agent and distributed in
accordance with Clause 31  (Payment Mechanics), without taking account of any Tax which
would be imposed on the COFACE Agent in relation to the receipt, recovery or
distribution; and


 


(c)                                  the
Recovering Finance Party shall, within three (3) Business Days of demand
by the COFACE Agent, pay to the COFACE Agent an amount (the “Sharing Payment”) equal to such receipt or
recovery less any amount which the Agent determines may be retained by the
Recovering Finance Party as its share of any payment to be made, in accordance
with Clause 31.6 (Partial Payments).


 


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30.2                          Redistribution
of Payments


 


The COFACE Agent shall treat the Sharing
Payment as if it had been paid by the relevant Obligor and distribute it
between the Finance Parties (other than the Recovering Finance Party) in
accordance with Clause 31.6 (Partial Payments).


 


30.3                          Recovering
Finance Party’s Rights


 


(a)                                  On a
distribution by the COFACE Agent under Clause 30.2 (Redistribution
of Payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.


 


(b)                                 If
and to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be
liable to the Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and payable.


 


30.4                          Reversal
of Redistribution


 


If any part of
the Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then:


 


(a)                                  each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 30.2 (Redistribution of Payments)
shall, upon request of the COFACE Agent, pay to the COFACE Agent for account of
that Recovering Finance Party an amount equal to the appropriate part of its share
of the Sharing Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay); and


 


(b)                                 that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Finance Party for the amount so reimbursed.


 


30.5                          Exceptions


 


(a)                                  This
Clause 30 shall not apply to the extent that the Recovering Finance Party
would not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.


 


(b)                                 A
Recovering Finance Party is not obliged to share with any other Finance Party
any amount which the Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:


 


(i)                                     it
notified that other Finance Party of the legal or arbitration proceedings; and


 


(ii)                                  that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice and did not take separate legal or arbitration
proceedings.


 


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31.                               PAYMENT MECHANICS


 


31.1                          Payments
to the COFACE Agent


 


(a)                                  On
each date on which the Borrower or a Lender is required to make a payment under
a Finance Document (subject to Clause 31.12 (Payments to
the Security Agent), the Borrower or Lender shall make the same
available to the COFACE Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds
specified by the COFACE Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.


 


(b)                                 All
payments to be made by the Borrower under this Agreement shall be made in
Dollars in immediately available funds to the account of the COFACE Agent with
account No. 20019409300136 with BNP Paribas
S.A., The Equitable Building, 787 Seventh Avenue, New York, SWIFT
code BNPAUS3NXXX, in favour of BNP PARIBAS LSI-BOCI, 150, Rue du Faubourg
Poissonnière 75010 PARISSWIFT code BNPAFRPPXXX, or to such other account
as the COFACE Agent may from time to time designate to the Borrower in writing.


 


(c)                                  For
any payment to be made by the Borrower, the Borrower shall ensure that the
COFACE Agent receives a swift advice of such payment from the Borrower’s bank
no later than the Business Day immediately preceding the date of such
payment.  The swift message shall be sent
to BNPAFRPPACH attention BOCI Buyers Credits with references
USA/GLOBALSTAR/Loan Agreement dated 5 June 2009 or such other account in
the principal financial centre of the country of that currency with such bank
as the COFACE Agent specifies.


 


31.2                          Evidence
of Financial Indebtedness


 


(a)                                  Each
Loan made by a Lender shall be evidenced by one (1) or more accounts
or records maintained by such Lender and by the COFACE Agent in the ordinary
course of business.  The accounts or
records maintained by the COFACE Agent and each Lender shall be conclusive
absent manifest error of the amount of any Loan made by the Lenders to the
Borrower and the interest and payments thereon.


 


(b)                                 Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower under this Agreement to pay any
amount owing with respect to the Obligations. 
If there is any conflict between the accounts and records maintained by
any Lender and the accounts and records of the COFACE Agent in respect of such
matters, the accounts and records of the COFACE Agent shall control in the
absence of manifest error.


 


(c)                                  Immediately
prior to the first Utilisation Date, the Borrower shall execute and deliver to each
Lender (through the COFACE Agent) a Promissory Note which shall evidence such
Lender’s Loan (including principal and interest) and, in addition to such
accounts or records.  Each Lender may
attach 


 


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schedules to its Promissory Notes and endorse
thereon the date, amount and maturity of its Loans and payments with respect
thereto.


 


31.3                          Distributions
by the COFACE Agent


 


Each payment received by the COFACE Agent
under the Finance Documents for another Party shall, subject to Clause 31.4 (Distributions
to the Borrower) and Clause 31.5  (Clawback) and Clause 31.12 (Payments to
the Security Agent), be made available by the COFACE Agent as soon
as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of its
Facility Office), to such account as that Party may notify to the COFACE Agent
by not less than five (5) Business Days’ notice with a bank in the
principal financial centre of the country of that currency.


 


31.4                          Distributions
to the Borrower


 


The COFACE Agent and the Security Agent may
(with the consent of the Obligor or in accordance with Clause 32 (Set-off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of receipt) of
any amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.


 


31.5                          Clawback


 


(a)                                  Where
a sum is to be paid to the COFACE Agent or the Security Agent under the Finance
Documents for another Party, the COFACE Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange contract)
until it has been able to establish to its satisfaction that it has actually
received that sum.


 


(b)                                 If
the COFACE Agent or the Security Agent pays an amount to another Party and it
proves to be the case that the COFACE Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of any related
exchange contract) was paid by the COFACE Agent or the Security Agent shall on
demand refund the same to the COFACE Agent together with interest on that
amount from the date of payment to the date of receipt by the COFACE Agent or
the Security Agent, calculated by it to reflect its cost of funds.


 


31.6                          Partial
Payments


 


(a)                                  If
the COFACE Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents, the
COFACE Agent shall apply that payment towards the obligations of that Obligor
under the Finance Documents in the following order:


 


(i)                                     first, in or towards
payment pro rata of any unpaid fees, costs and
expenses of the COFACE Agent, the Security Agent or the Mandated Lead Arrangers
under the Finance Documents;


 


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(ii)                                  secondly, in or towards
payment pro rata of any accrued interest, fee or
commission due to the Finance Parties but unpaid under this Agreement;


 


(iii)                               thirdly, in or towards
payment pro rata of any principal due but unpaid
under this Agreement; and


 


(iv)                              fourthly, in or towards
payment pro rata of any other sum due but unpaid
under the Finance Documents.


 


(b)                                 The
COFACE Agent shall, if so directed by the Majority Lenders, vary the order set
out in paragraphs (a)(ii) to
(iv) above.


 


(c)                                  Paragraphs (a) and
(b) above will override any
appropriation made by an Obligor.


 


31.7                          No
set-off by the Borrower


 


All payments to be made by the Borrower
under the Finance Documents shall be calculated and be made without (and free
and clear of any deduction for) set-off or counterclaim.


 


31.8                          Business
Days


 


(a)                                  Any
payment which is due to be made on a day that is not a Business Day shall be
made on the next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not).


 


(b)                                 During
any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate
payable on the original due date.


 


31.9                          Currency
of Account


 


(a)                                  Subject
to paragraphs (b) and (c) below,
Dollars is the currency of account and payment for any sum due from the
Borrower under any Finance Document.


 


(b)                                 Each
payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.


 


(c)                                  Any
amount expressed to be payable in a currency other than Dollars shall be paid
in that other currency.


 


31.10                    Change
of Currency


 


(a)                                  Unless
otherwise prohibited by law, if more than one currency or currency unit are at
the same time recognised by the central bank of any country as the lawful
currency of that country, then:


 


(i)                                     any
reference in the Finance Documents to, and any obligations arising under the
Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country 


 


152

















 


designated by the COFACE Agent (after consultation
with the Borrower); and


 


(ii)                                  any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded up or down by the COFACE
Agent (acting reasonably).


 


(b)                                 If a
change in any currency of a country occurs, this Agreement will, to the extent
the COFACE Agent (acting reasonably and after consultation with the Borrower)
specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the London interbank market and otherwise to
reflect the change in currency.


 


31.11                    Disruption
to Payment Systems etc.


 


If either the
COFACE Agent determines (in its discretion) that a Disruption Event has
occurred or the COFACE Agent is notified by the Borrower that a Disruption
Event has occurred:


 


(a)                                  the
COFACE Agent may, and shall if requested to do so by the Borrower, consult with
the Borrower with a view to agreeing with the Borrower such changes to the
operation or administration of the Facility as the COFACE Agent may deem
necessary in the circumstances;


 


(b)                                 the
COFACE Agent shall not be obliged to consult with the Borrower in relation to
any changes mentioned in paragraph (a) if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;


 


(c)                                  the
COFACE Agent may consult with the Finance Parties in relation to any changes
mentioned in paragraph (a) but shall not be obliged to do so if, in
its opinion, it is not practicable to do so in the circumstances;


 


(d)                                 any
such changes agreed upon by the COFACE Agent and the Borrower shall (whether or
not it is finally determined that a Disruption Event has occurred) be binding
upon the Parties as an amendment to (or, as the case may be, waiver of) the
terms of the Finance Documents notwithstanding the provisions of Clause 37 (Amendments and waivers);


 


(e)                                  the
COFACE Agent shall not be liable for any damages, costs or losses whatsoever
(including, without limitation for negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the fraud
of the COFACE Agent) arising as a result of its taking, or failing to take, any
actions pursuant to or in connection with this Clause 31.11 (Disruption to Payment Systems etc.); and


 


(f)                                    the
COFACE Agent shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above.


 


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31.12                    Payments
to the Security Agent


 


Notwithstanding any other provision of any
Finance Document, after a notice has been given to the Borrower under
Clause 24 (Remedies Upon an Event of Default),
and at any time after any Liens created by or pursuant to any Security Document
becomes enforceable, the Security Agent may require the Borrower to pay all
sums due under any Finance Document as the Security Agent may direct for
application in accordance with the terms of the Security Documents.


 


32.                               SET-OFF


 


If an Event of Default has occurred and is
continuing, a Finance Party may set-off any matured obligation due from an
Obligor under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party to
that Obligor, regardless of the place of payment, booking branch or currency of
either obligation.  If the obligations
are in different currencies, the Finance Party may convert either obligation at
a market rate of exchange in its usual course of business for the purpose of
the set-off.  Following the exercise of a
right of set-off under this Agreement, the relevant Finance Party shall notify
the Borrower.


 


33.                               NOTICES


 


33.1                          Communications
in Writing


 


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


 


33.2                          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 or document to
be made or delivered under or in connection with the Finance Documents is:


 


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


 


(b)                                 in
the case of each Lender, that notified in writing to the COFACE Agent on or
prior to the date on which it becomes a Party; and


 


(c)                                  in
the case of the COFACE Agent and the Security Agent, that identified with its
name below,


 


or any substitute address or fax number or
department or officer as the Party may notify to the COFACE Agent (or the
COFACE Agent may notify to the other Parties, if a change is made by the COFACE
Agent) by not less than five (5) Business Days’ notice.


 


33.3                          Delivery


 


(a)                                  Any
communication or document made or delivered by one person to another under or
in connection with the Finance Documents will only be effective:


 


(i)                                     if
by way of fax, when received in legible form; or


 


154

















 


(ii)                                  if
by way of letter, when it has been left at the relevant address or five (5) Business
Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address;


 


and, if a particular department or officer
is specified as part of its address details provided under Clause 33.2 (Addresses), if addressed to that department or officer.


 


(b)                                 Any
communication or document to be made or delivered to the COFACE Agent, the
Security Agent or the Mandated Lead Arrangers will be effective only when
actually received by the COFACE Agent, the Security Agent or such Mandated Lead
Arranger and then only if it is expressly marked for the attention of the
department or officer identified with the COFACE Agent’s, the Security Agent’s
or such Mandated Lead Arranger’s signature below (or any substitute department
or officer as the COFACE Agent, the Security Agent or such Mandated Lead
Arranger shall specify for this purpose).


 


(c)                                  All
notices from or to an Obligor shall be sent through the COFACE Agent.


 


(d)                                 Any
communication or document made or delivered to the Borrower in accordance with
this Clause will be deemed to have been made or delivered to each of the
Obligors.


 


33.4                          Notification
of Address and Fax Number


 


Promptly upon receipt of notification of an
address or fax number or change of address or fax number pursuant to
Clause 33.2 (Addresses) or changing its own
address or fax number, the COFACE Agent shall notify the other Parties.


 


33.5                          Electronic
Communication


 


(a)                                  Any
communication to be made between the COFACE Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or other
electronic means, if the COFACE Agent and the relevant Lender:


 


(i)                                     agree
that, unless and until notified to the contrary, this is to be an accepted form
of communication;


 


(ii)                                  notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and


 


(iii)                               notify
each other of any change to their address or any other such information
supplied by them.


 


(b)                                 Any
electronic communication made between the COFACE Agent and a Lender will be
effective only when actually received in readable form and in the case of any
electronic communication made by a Lender to the COFACE Agent only if it is
addressed in such a manner as the COFACE Agent shall specify for this purpose.


 


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33.6                          English
Language


 


(a)                                  Any
notice given under or in connection with any Finance Document must be in
English.


 


(b)                                 All
other documents provided under or in connection with any Finance Document must
be:


 


(i)                                     in
English; or


 


(ii)                                  if
not in English, and if so required by the COFACE Agent, accompanied by a
certified English translation and, in this case, the English translation will
prevail unless the document is a constitutional, statutory or other official
document.


 


34.                               CALCULATIONS AND CERTIFICATES


 


34.1                          Accounts


 


In any litigation or arbitration
proceedings arising out of or in connection with a Finance Document, the
entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.


 


34.2                          Certificates
and Determinations


 


Any certification or determination by a
Finance Party of a rate or amount under any Finance Document is, in the absence
of manifest error, conclusive evidence of the matters to which it relates.


 


34.3                          Day
Count Convention


 


Any interest, commission or fee accruing
under a Finance Document will accrue from day to day and is calculated on the
basis of the actual number of days elapsed and a year of three hundred and
sixty (360) days or, in any case where the practice in the London
interbank market differs, in accordance with that market practice.


 


35.                               PARTIAL INVALIDITY


 


If, at any time, any provision of the
Finance Documents 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.


 


36.                               REMEDIES AND WAIVERS


 


No failure to exercise, nor any delay in
exercising, on the part of any Finance Party, any right or remedy under the
Finance Documents 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.


 


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37.                               AMENDMENTS AND WAIVERS


 


37.1                          Required
Consents


 


(a)                                  Subject
to Clause 37.2 (Exceptions) any
term of the Finance Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and following consultation by the COFACE
Agent with COFACE.  Any such amendment or
waiver will be binding on all Parties.


 


(b)                                 The
COFACE Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.


 


37.2                          Exceptions


 


(a)                                  An
amendment or waiver that has the effect of changing or which relates to:


 


(i)                                     the
definition of “Majority Lenders” in
Clause 1.1 (Definitions);


 


(ii)                                  an
extension to the date of payment of any amount under the Finance Documents;


 


(iii)                               a
reduction in the Applicable Margin or a reduction in the amount of any payment
of principal, interest, fees or commission payable;


 


(iv)                              an
increase in or an extension of any Commitment;


 


(v)                                 a
change to an Obligor;


 


(vi)                              any
provision which expressly requires the consent of all the Lenders;


 


(vii)                           Clause 2.2
(Finance Parties’ Rights and Obligations),
Clause 26 (Changes to the Lenders) or this
Clause 37;


 


(viii)                        the
nature or scope of the assets of the Borrower which from time to time are, or
are expressed to be, the subject of a Lien under the Security Documents; or


 


(ix)                                the
release of any Lien granted in accordance with the Security Documents or the
granting of any Lien required under the terms of this Agreement,


 


shall not be made without the prior consent
of all the Lenders.


 


(b)                                 An
amendment or waiver which relates to the rights or obligations of the COFACE
Agent, the Security Agent, and/or a Mandated Lead Arranger may not be effected
without the consent of the COFACE Agent, the Security Agent, and/or the
Mandated Lead Arranger (as the case may be).


 


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38.                               COUNTERPARTS


 


Each Finance Document 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 the Finance Document.


 


39.                               GOVERNING LAW


 


This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English
law.


 


40.                               ENFORCEMENT


 


40.1                          Jurisdiction


 


(a)                                  The
courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Agreement (including a dispute relating to the
existence, validity or termination of this Agreement or any non-contractual obligation
arising out of or in connection with this Agreement) (a “Dispute”).


 


(b)                                 The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.


 


(c)                                  This
Clause 40.1 (Jurisdiction) is for the benefit
of the Finance Parties only.  As a
result, no Finance Party shall be prevented from taking proceedings relating to
a Dispute in any other courts with jurisdiction.  To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.


 


40.2                          Service
of Process


 


Without
prejudice to any other mode of service allowed under any relevant law, the
Borrower:


 


(a)                                  irrevocably
appoints WFW Legal Services Limited of 15 Appold Street, London EC2A 2HB
as its agent for service of process in relation to any proceedings before the
English courts in connection with any Finance Document; and


 


(b)                                 agrees
that failure by a process agent to notify the Borrower of the process will not
invalidate the proceedings concerned.


 


40.3                          Waiver
of Immunity


 


To the extent that the Borrower may in any
jurisdiction claim for itself or its assets or revenues immunity from suit,
execution, attachment (whether in aid of execution, before judgment or otherwise)
or other legal process and to the extent that in any such jurisdiction there
may be attributed to itself, its assets or revenues such immunity (whether or
not claimed), the Borrower irrevocably agrees not to claim, and irrevocably
waives, such immunity to the full extent permitted by the laws of such
jurisdiction.


 


158
















 


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


 


159

















 


SIGNATORIES


 


THE BORROWER


 


GLOBALSTAR, INC.


 


	
  By:

  	
   

  	
  /s/ James Monroe III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  James Monroe III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Globalstar, Inc.

  	
   

  
	
   

  	
   

  	
  461 South Milpitas Boulevard

  	
   

  
	
   

  	
   

  	
  Building 5, Suite 1 and 2

  	
   

  
	
   

  	
   

  	
  Milpitas, CA 95035

  	
   

  
	
   

  	
   

  	
  United States of America

  	
   

  



 


160

















 


THE COFACE AGENT


 


BNP PARIBAS


 


	
  By:

  	
   

  	
  /s/ Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Head of Export Finance - Americas

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  16 boulevard des Italiens,
  75009 Paris, France

  	
   

  



 


161

















 


MANDATED LEAD ARRANGER


 


BNP PARIBAS


 


	
  By:

  	
   

  	
  /s/ Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Head of Export Finance - Americas

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  16 boulevard des Italiens,
  75009 Paris, France

  	
   

  



 


162

















 


MANDATED LEAD ARRANGER


 


SOCIÉTÉ GÉNÉRALE


 


	
  By:

  	
   

  	
  /s/ Olivier Royer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Olivier Royer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Tour Société Générale, 17, cours Valmy,
  92800 Puteaux, Paris, France

  



 


163

















 


MANDATED LEAD ARRANGER


 


NATIXIS


 


	
  By:

  	
   

  	
  /s/ Jean-Louis Viala

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Jean-Louis VIALA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Structured Export Finance, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  NATIXIS, 68-76 Quai de la Rapée, 75012,
  Paris, France

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Arnaud Sarret

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Arnaud SARRET

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Structured Export Finance, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  NATIXIS, 68-76 Quai de la Rapée, 75012,
  Paris, France

  	
   

  



 


164

















 


MANDATED LEAD ARRANGER


 


CALYON


 


	
  By:

  	
   

  	
  /s/ Didier Laffon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Didier Laffon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Executive Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Frédéric Bambuck

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Frédéric Bambuck

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  



 


165

















 


MANDATED LEAD ARRANGER


 


CRÉDIT INDUSTRIEL ET COMMERCIAL


 


	
  By:

  	
   

  	
  /s/ Jacques-Philippe Menville

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Jacques-Philippe Menville

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Senior Vice-President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  6 avenue de Provence, 75009, Paris

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Michêle Patri

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Michêle Patri

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Assistant Vice-President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  6 avenue de Provence, 75009, Paris

  	
   

  



 


166
















 


THE SECURITY AGENT


 


BNP PARIBAS


 


	
  By:

  	
   

  	
  /s/ Debbie
  Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Head of
  Export Finance - Americas

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5
  June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  16 boulevard
  des Italiens, 75009 Paris, France

  	
   

  



 


167

















 


THE LENDERS


 


BNP PARIBAS


 


	
  By:

  	
   

  	
  /s/ Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Debbie Hirst

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Head of Export Finance - Americas

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  16 boulevard des Italiens,
  75009 Paris, France

  	
   

  



 


168

















 


THE LENDERS


 


SOCIÉTÉ GÉNÉRALE


 


	
  By:

  	
   

  	
  /s/ Olivier Royer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Olivier Royer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Tour Société
  Générale, 17, cours Valmy, 92800 Puteaux, Paris, France

  



 


169

















 


THE LENDERS


 


NATIXIS


 


	
  By:

  	
   

  	
  /s/ Jean-Louis Viala

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Jean-Louis VIALA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Structured Export Finance, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  NATIXIS, 68-76 Quai de la Rapée, 75012,
  Paris, France

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Arnaud Sarret

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Arnaud SARRET

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Structured Export Finance, Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  NATIXIS, 68-76 Quai de la Rapée, 75012,
  Paris, France

  	
   

  



 


170

















 


THE LENDERS


 


CALYON


 


	
  By:

  	
   

  	
  /s/ Didier Laffon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Didier Laffon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Executive Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Frédéric Bambuck

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Frédéric Bambuck

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  



 


171

















 


CRÉDIT
INDUSTRIEL ET COMMERCIAL


 


	
  By:

  	
   

  	
  /s/
  Jacques-Philippe Menville

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Jacques-Philippe
  Menville

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Senior
  Vice-President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  6 avenue de
  Provence, 75009, Paris

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Michêle
  Patri

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Michêle
  Patri

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Assistant
  Vice-President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5 June 2009

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  6 avenue de
  Provence, 75009, Paris

  	
   

  



 


172