Exhibit 10.2


 


CONFIDENTIAL
TREATMENT


 


Portions of this exhibit
have been omitted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934. Such portions are marked “[*]” in this
document; they have been filed separately with the Commission.


 


 


AMENDED AND RESTATED CONTRACT


 


 


BETWEEN


 


 


GLOBALSTAR, INC.


 


 


AND


 


 


THALES ALENIA SPACE FRANCE


 


 


FOR THE CONSTRUCTION OF


THE GLOBALSTAR SATELLITE


FOR THE SECOND GENERATION CONSTELLATION


 


 


CONTRACT NUMBER GINC-C-06- 0300


 

















 


TABLE OF CONTENTS


 


	
  Article

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions

  	
   

  	
  4

  
	
  2.

  	
  Scope and Exhibits

  	
   

  	
  10

  
	
  3.

  	
  Purchaser’s Undertakings

  	
   

  	
  13

  
	
  4.

  	
  Total Price

  	
   

  	
  14

  
	
  5.

  	
  Bonus Payments

  	
   

  	
  16

  
	
  6.

  	
  Delivery and Delivery Schedule

  	
   

  	
  19

  
	
  7.

  	
  Payment

  	
   

  	
  20

  
	
  8.

  	
  Inspection and Acceptance

  	
   

  	
  24

  
	
  9.

  	
  Title and Risk of Loss

  	
   

  	
  26

  
	
  10.

  	
  Access to Work in Progress

  	
   

  	
  27

  
	
  11.

  	
  Progress Meeting,
  Presentations and Reports

  	
   

  	
  28

  
	
  12.

  	
  Intellectual Property
  Rights

  	
   

  	
  28

  
	
  13.

  	
  Public Release of
  Information

  	
   

  	
  29

  
	
  14.

  	
  Confidentiality

  	
   

  	
  30

  
	
  15.

  	
  Intellectual Property
  Rights Indemnity

  	
   

  	
  30

  
	
  16.

  	
  Limitation of Liability

  	
   

  	
  31

  
	
  17.

  	
  Excusable Delays

  	
   

  	
  33

  
	
  18.

  	
  Liquidated Damages for Late Delivery / Early
  Delivery Incentives

  	
   

  	
  34

  
	
  19.

  	
  Request For Deviation
  (RFD)/Request For Waivers (RFW) and Changes

  	
   

  	
  38

  
	
  20.

  	
  Termination for Default

  	
   

  	
  39

  
	
  21.   

  	
  Termination for
  Convenience

  	
   

  	
  40

  
	
  22.

  	
  Stop Work

  	
   

  	
  41

  
	
  23.

  	
  Arbitration

  	
   

  	
  45

  
	
  24.

  	
  Warranty

  	
   

  	
  46

  
	
  25.

  	
  Communication and
  Authority

  	
   

  	
  48

  
	
  26.

  	
  Spacecraft for Phase 3

  	
   

  	
  50

  
	
  27.

  	
  Licenses for Export and
  Launch

  	
   

  	
  52

  
	
  28.

  	
  Spacecraft Storage

  	
   

  	
  53

  
	
  29.

  	
  Options

  	
   

  	
  54

  
	
  30.

  	
  Key Personnel

  	
   

  	
  56

  
	
  31.

  	
  Indemnification and
  Insurance

  	
   

  	
  56

  
	
  32.

  	
  Effective Date of Contract

  	
   

  	
  58

  
	
  33.

  	
  Representations

  	
   

  	
  59

  
	
  34. 

  	
  General Provisions

  	
   

  	
  59

  



 


2

















 


This Amended and Restated Contract dated as of June 3, 2009, made
between Thales Alenia Space France (formerly
known as Alcatel Alenia Space France), a company organized under the
laws of France and having its registered office at 26, avenue Jean-François
Champollion, 31100 Toulouse, France (“Contractor”) and Globalstar, Inc., a Delaware corporation
with offices at 461 South Milpitas Blvd., Milpitas, California 95035, U.S.A. (“Purchaser”).


 


Recitals


 


Whereas, the Purchaser and the
Contractor entered into a Contract for the procurement of forty eight (48)
satellites and other Deliverable Items and related services for the
Construction of the Globalstar Satellites for the Second Generation
Constellation, dated November 30, 2006 ; and


 


Whereas, the Parties have
modified the Contract through Amendments 1, 2, 3, 4, 5, 6, 7 and 8 ; and


 


Whereas, the Parties wish to
amend and restate the entire Contract as previously amended, including the
terms and conditions; and


 


Whereas, the Parties
further wish to agree to other changes to the Contract to incorporate (a) Increase
Power Beam Step 1 as described in the ATP Ref PJR-0808-005 signed on 19th August, 2008 between the Parties and Step 2 as
described in the ATP Ref PJR-0908-001 signed on 17th September,
2008 between the Parties, (b) Phase 1&2 and Phase 3 updated line item
pricing distribution; (c) Procurement of Phase 3 Long Lead Items for 6
Spacecraft (d) alternate Phase 3 delivery schemes and associated Security
Instrument ; and


 


Whereas, the Parties
further wish to modify certain provisions of the Contract and its Exhibits and
Appendices as a result of such agreement.


 


Now therefore, the Parties hereto, in
consideration of the mutual covenants herein expressed, agree with each other
as follows:


 


3

















 


Terms and Conditions


 


Article 1.  Definitions


 


As
used in this Contract, the following terms have the meanings indicated :


 


“Anomaly
Support” shall mean the support provided by Contractor to Purchaser for the
first year after the date of the first successful launch of Spacecraft, as
described in greater detail in Exhibit A.


 


“Authorization
To Proceed” or “ATP” shall mean the document executed by Purchaser and
Contractor dated October 4th, 2006, as amended from time to time, authorizing Contractor to proceed
with certain Work prior to entry into force of this Contract.


 


“Available
for Shipment” means that a Satellite has successfully undergone a Pre-Shipment
Review in accordance with section 5.8 of Exhibit A and has been declared ready
to be shipped either to the Launch Site or to the storage location as set forth
in Article 29.


 


“Background
IP” shall mean Intellectual Property developed and owned by Contractor prior to
entering into this Contract or outside the scope of this Contract which will be
utilized or incorporated by Contractor into any Deliverable Item under this
Contract.


 


“Batch”
shall mean each group of Spacecraft to be installed on the same Launch Vehicle
dispenser and to be launched on such Launch Vehicle.


 


“Bonus
Payments” shall mean the payments which may be made pursuant to the provisions
of Article 5.


 


“Business
Day” means a day which Purchaser and Contractor are both open for business,
other than a Saturday, Sunday or other day on which commercial banks in New
York City, France, or the State of California are authorized or required by law
to close.


 


“Contract”
or “Amended and Restated Contract” shall mean the Contract entered into between
Purchaser and Contractor, including all Exhibits and Appendices referenced herein,
and all amendments that may be made hereto and thereto.


 


“Contractor” shall mean Thales Alenia
Space France.


 


“Contractor
Indemnitees” shall have the meaning ascribed to it in Article 31(B).


 


“Day”
shall mean, whether or not capitalized, a calendar day.


 


“Deliverable
Items” shall mean those items set forth in Article 2(C).


 


4

















 


“Delivery”
shall mean the delivery of Deliverable Items as set forth in Article 6.


 


“Delivery
Schedule” shall mean the timetables for Delivery of the Deliverable Items as
set forth in Article 6.


 


“Documentation”
shall mean the documentation to be supplied by Contractor to Purchaser as
listed in Exhibit A.


 


“DSS”
shall mean Dynamic Satellite Simulator software in executable form, including
updated versions, as described in Exhibit E.


 


“Early Delivery ED2” shall
mean the scheme of Batch early delivery which may be achieved under Phase 2 as
set forth in Early Delivery ED2 Scope of Work ref 200331862W Issue 01.


 


“Early Delivery
Incentives” shall mean the amount of incentives to be paid by the Purchaser to
the Contractor in case some Schedule Saving is achieved by the Contractor in
the frame of Early Delivery ED2 Scope of Work implementation.


 


“EDC” shall mean October
1, 2006.


 


“EDC2” shall
mean the effective date of this Amended and Restated Contract as set forth in Article
32.


 


“Escrow
Account” shall mean the
escrow account opened by Purchaser with the Escrow Agent pursuant to the Escrow
Agreement, as set forth in Article 7(I).


 


“Escrow Agent” shall mean
Société Générale, Société Anonyme with registered capital of [576.285.895.00
EUR], having its registered office in 29 Boulevard Haussmann, Paris, France.


 


“Escrow Agreement” shall
mean the escrow agreement entered into by and between the Parties and the
Escrow Agent on December 21st, 2006 as
amended.


 


“Export Credit Facility”
means the agreement between the Purchaser and the Lender pursuant to which
Purchaser obtains a loan backed by the COFACE from such Lender for the purpose
of financing a portion of this Contract.


 


“Factory
Acceptance Test Review” shall have the meaning set forth in section 5.16 of Exhibit
A.


 


“Final
Acceptance” shall be as described in Article 8(A) with respect to Spacecraft
and as described in Article 8(B) with respect to DSSs.


 


“Flight
Readiness Review” or “FRR” shall mean the review described in section 5.10 of Exhibit
A.


 


5

















 


“Foreground
IP” shall mean Intellectual Property developed, conceived or first actually
reduced to practice by the Contractor in the performance of Work under this
Contract.


 


“Globalstar
System” shall mean the system consisting of the Satellites, Ground Control
Network, network control centers and user terminals for the provision of
communications services.


 


“Ground
Control Network” shall mean the items to be provided by Purchaser composed of
the following : (i) Satellite Control Network, (ii) the gateway RF terminals and (iii) the
Globalstar data network.


 


“Ground
Support Equipment” or “GSE” shall mean all equipment used or necessary to
permit the transportation, handling, integration and test of the Spacecraft
during factory validation testing and pre-Launch operations.


 


“Intellectual
Property” or “IP” shall mean all intellectual property, including without
limitation, inventions, patents, copyrights, trade secrets, DSS, Satellite OBPE
Software, Documentation including Technical Data, discoveries, technical
know-how, techniques, procedures, methods, designs, improvements or
innovations.


 


“Intentional
Ignition” shall mean the
time designated by ARIANESPACE, during the launch sequence when the command to
ignite is intentionally sent to any one of the motors of the Launch Vehicle for
the purpose of a Launch following a planned countdown.


 


“Interest
Rate” shall mean the One Month EURIBOR as established by the European Financial
Markets Association (ACI) and European Banking Federation (EBF) and as
published on their joint website at
http://www.euribor.org/html/content/euribor_data.html on the payment due date
plus [*] basis points (such one-month EURIBOR rate to “float” by being
re-determined on the first day of each calendar month).


 


“Key Person” shall have the meaning
ascribed to it in Article 30(A).


 


“Key
Personnel” shall have the meaning ascribed to it in Article 30(A).


 


“Launch”
shall mean the Intentional Ignition of
the Launch Vehicle followed by Lift-off.


 


“Launch Date” shall mean each date
scheduled for Launch of one or more Satellites.


 


“Launch ED2 Objective Dates”
shall mean target dates for Batch Launch as set forth in Early Delivery ED2
Scope of Work ref 200331862W Issue 01.


 


“Launch ED2 Schedule
Saving” shall mean the actual number of days of advanced launch for each Batch
calculated by taking into account the difference between Nominal Schedule Launch
Date and actual Launch Date for each Batch under Early Delivery ED2 scheme.


 


6

















 


“Launch
Insurance” means, with respect to the Satellites, insurance that covers such
Satellites from the period beginning at Intentional Ignition, at coverage
levels determined at sole discretion of Purchaser.


 


“Launch
Readiness Review” or “LRR” shall mean the review described in section 5.11 of Exhibit
A.


 


“Launch
Services” shall mean the services provided by a Launch Services Provider
pursuant to a Launch Services Agreement.


 


“Launch
Services Agreement” shall mean each agreement between a Launch Services
Provider and Purchaser for the launch of one or more Spacecraft.


 


“Launch
Services Provider” shall mean each company with whom Purchaser contracts for
the launch of one or more Spacecraft.


 


“Launch
Site” shall mean each launch facility provided by a Launch Services Provider,
including all buildings and testing, storage and other facilities thereon.


 


“Launch
Support Services” shall mean the services Contractor shall provide pursuant to
this Contract in support of the launch of the Spacecraft, as more fully set
forth in section 3.4 of Exhibit A.


 


“Launch Vehicle” shall mean each vehicle
provided by the Launch Services Providers on which one or more Spacecraft are
to be launched. The list of possible Launch Vehicles is included in section 1.1
of Exhibit A.


 


“Lender” means BNP Paribas, a French company
chartered as a bank under the laws of France that shall make a loan to
Purchaser and being the leader and arranger of a pool of commercial bank.


 


“Licensed
Items” shall mean any Deliverable Items being furnished pursuant to, or to be
utilized in connection with, this Contract which require the approval,
permission or license from a government with respect to export control laws of
such government.


 


“Lift-Off”
shall mean the disconnection of the
lift-off plug if such event follows Intentional Ignition.


 


“Long
Lead Items” or “LLI” shall mean the items to be procured in advance for the
manufacture of Phase 3 Spacecraft as set forth in Article 26.


 


“Milestone
Events” shall mean those milestones which are eligible for payment as set forth
in the column entitled “Milestone Events” in Exhibit F1, F2 or F3, as
applicable.


 


“Mission
Operations Support Services” or “MOSS” shall mean the services Contractor shall
provide pursuant to this Contract as more fully set forth in section 3.5 of Exhibit
A.


 


7

















 


As
the Contractor has been awarded a contract for delivery of the Satellite
Control Network (Ref GINC-C-07-0320), and according to Article 3.5 of Exhibit A,
Contractor shall not perform the additional work as set forth in Annex D of Exhibit
A.


 


“Nominal Schedule Launch
Dates” shall mean dates of launch foreseen for the different Batches under this
Contract as set forth in the Table in Article 18.2.


 


“Party”
or “Parties” shall mean one or both of Contractor and Purchaser.


 


“Phase” shall mean each of the phases
according to which the Contract shall be performed as set forth in Article 2(D)
and Exhibit F.


 


“Preliminary
Design Review” or “PDR” shall mean the review described in section 5.4.1 of Exhibit
A.


 


“Pre-Shipment
Review” or “PSR” shall mean the review described in section 5.8 of Exhibit A.


 


“Pre-Shipment
Review Acceptance Certificate” shall mean the certification as set forth in Article
8, provided by Contractor to Purchaser upon successful completion of a
Pre-Shipment Review.


 


“Program
Readiness Review” or “PRR” shall mean the review described in section 5.2 of Exhibit
A.


 


“Proto-Flight
Model Spacecraft” or “PFM” shall mean the Spacecraft which shall be tested at qualification levels and acceptance duration
as a proto flight model.


 


“PSR ED2 Objective Dates”
shall mean PSR target dates for the different Batches as set forth in Early
Delivery ED2 Scope of Work ref 200331862W Issue 01.


 


“PSR ED2 Schedule
Saving” shall mean the actual number of days of advanced delivery for the last
satellite of each Batch calculated by taking into account the difference between
Delivery Date and the actual date PSR ED2 is achieved for the last satellite of
each Batch.


 


“Purchaser” shall mean Globalstar, Inc.


 


“Purchaser
Indemnitees” shall have the meaning ascribed to it in Article 31(A).


 


“Purchaser
Residents” shall mean the employees or representatives of Purchaser located in
the Contractor’s facilities for the purpose of technical management of the
Contract.


 


“Regular
Delivery” shall mean the delivery of the Spacecraft to be delivered under Phase
3 as set forth in Exhibit F.


 


8
















 


“Required Delivery Date(s)” shall mean each date of PSR required for
the different Batches under this Contract as set forth in the Table in Article 18.1(B).


 


“Satellite”
or “Spacecraft” shall mean any spacecraft to be constructed and delivered
pursuant to this Contract, as generally described in Exhibit A and Exhibit B.


 


“Satellite
Control Network” shall mean the items to be provided by Purchaser composed of
the following : (i) Satellite
Operations Control Centers (SOCCs) (Main, Development and Back Up SOCCs), (ii) the
Telemetry Command Units (TCUs) and (iii) the In Orbit Test Equipment (MCE and
CMA), as set forth in section 6.5 of Exhibit A.


 


“Satellite
OBPE Software” shall mean the software in executable form and source code form,
including updated versions, to be delivered as set forth in section 3.1 of Exhibit
A.


 


“Satellite
Post-Shipment Verification Review” shall mean a visual inspection by Contractor
of a Satellite after delivery to the Launch Site, to verify that the Satellite
has not been degraded during transportation from Contractor’s facility, as set
forth in section 5.9 of Exhibit A.


 


“Security
Amounts” shall mean, in the frame of Phase 3, the amounts as per Exhibit F to
be deposited on the Escrow Account or any other Security Instrument agreed between
the Parties pending the different Phase 3 schedule options from Article 26
selected by the Purchaser.


 


“Security
Instrument” shall mean the financial security mechanism to be agreed in the
form and substance between the Parties and to be set by the Purchaser prior to
Contractor’s performance on Phase 3 activities as set forth in Article 26 (D).


 


“Simulator
Completion Review” shall mean verification of a DSS performance in stand-alone
mode, similar to the Factory Acceptance Test Review, but after installation at
Purchaser’s designated DSS installation site, as set forth in section 1.1 and
section 5.16 of Exhibit A.


 


“Stop
Work Order” shall mean a written order from Purchaser to Contractor requesting
that Contractor cease, and cause Subcontractors (as applicable) to cease,
performance of all or part of the Work for the period specified in such order,
as such period may be extended in accordance with the Contract, as set forth in
Article 22(A).


 


“Storage
Plan” shall mean a plan for the storage of one or more Spacecraft at a site
designated in the plan, as set forth in section 3.6.1 of Exhibit A.


 


“Subcontractors”
shall mean all subcontractors of Contractor at any tier.


 


“Technical
Data” shall mean information which is required for the design, development, production,
manufacture, assembly, operation, repair, testing, maintenance or modification
of the Spacecraft and the DSS, including documentation.


 


9

















 


“Total
Price” shall mean the firm fixed price payable for the Work as defined in Article
4(A).


 


“US
Dollar” or “USD” shall mean a dollar of United States currency.


 


“WIP”
shall mean all Work in progress.


 


“Work”
shall mean all design, development, construction, manufacturing, labor,
services, and acts of Contractor, including tests to be performed, required
under Exhibit A (except section 6 thereof), and including all equipment,
materials, articles, matters, services and things to be furnished by Contractor
under this Contract.


 


Article 2. 
Scope and Exhibits


 


(A)                  Contractor shall provide the necessary
personnel, material, services and facilities to perform the Work in accordance
with the provisions of this Contract, including the Exhibits and Appendices
listed below, which are attached hereto or incorporated by reference and made a
part hereof, and to make delivery to Purchaser in accordance with the Delivery
Schedule as provided in Article 6.


 


	
  Exhibit A

  	
  GBS2 Space Segment
  Globalstar Statement of Work

  
	
   

  	
  Ref GS-06-1130 dated
  October 1, 2006 — Issue 01 amended by Early Delivery ED2 Scope of Work Ref
  2003 318 62 W Issue 01; amended by Satellite Mass Simulator Change Proposal
  Ref 200329592G Rev1;  amended by Latch
  Valve OFF Command Change Proposal Ref TAS-08-DCI-37; and amended by Increase
  Power Beam document Ref.100181703F-EN dated August 2008

  
	
  Exhibit B

  	
  Globalstar II LEO
  Satellite Performance Specification

  
	
   

  	
  Ref 200221417A issue 7

  
	
  Exhibit C

  	
  Satellite Program Test Plan

  
	
   

  	
  Ref 200221933 issue 4

  
	
  Exhibit D

  	
  Globalstar 2 Product
  Assurance Plan

  
	
   

  	
  Ref 200217065 S, Version 03 dated November 24, 2006

  
	
  Exhibit E

  	
  Globalstar Dynamic
  Satellite Simulator Requirements Specification

  
	
   

  	
  Ref 3474-05-0023 Rev 1_V2, dated November 20,
  2006

  
	
  Exhibit F

  	
  Payment Plans

  
	
  Exhibit G

  	
  Form of Escrow Agreement

  
	
  Exhibit H

  	
  Bonus Payments Criteria (EBITDA
  and satisfactory operation)

  
	
  Exhibit I

  	
  Globalstar Patent
  Portfolio

  
	
   

  	
   

  
	
  Appendix 1

  	
  Mutual Nondisclosure
  Agreement between Globalstar, Inc and Thales Alenia Space France (formerly
  Alcatel Alenia Space France), dated November 2nd 2006.

  
	
  Appendix 2

  	
  Technical Assistance
  Agreement (DTC Case TA 3474-05) and subsequent amendments.

  



 


10

















 


	
  Appendix 3

  	
  Technical Assistance
  Agreements for Launch Services  (DTC Case  TA0645-07) and subsequent amendments.

  



 


(B)                    In case of any inconsistencies among the
articles of this Contract and any of the Exhibits, the following order of
precedence shall apply :


 


Appendix
2


Terms
and Conditions of Contract


All
other Appendices


 


	
  Exhibit F

  	
  Payment Plans

  
	
  Exhibit A

  	
  GBS2 Space Segment Globalstar
  Statement of Work

  
	
   

  	
  Ref GS-06-1130 dated
  October 1, 2006 — Issue 01 amended by Early Delivery ED2 Scope of Work Ref
  2003 318 62 W Issue 01; amended by Satellite Mass Simulator Change Proposal
  Ref 200329592G Rev1; amended by Latch Valve OFF Command Change Proposal Ref
  TAS-08-DCI-37, and amended by Increase Power Beam document

  
	
   

  	
  Ref.100181703F-EN dated
  August 2008

  
	
  Exhibit B

  	
  Globalstar II LEO
  Satellite Performance Specification

  
	
   

  	
  Ref 200221417A issue 7

  
	
  Exhibit C

  	
  Satellite Program Test
  Plan

  
	
   

  	
  Ref 200221933 issue 4

  
	
  Exhibit D

  	
  Globalstar 2 Product
  Assurance Plan

  
	
   

  	
  Ref 200217065
  S, Version 03 dated November 24, 2006

  
	
  Exhibit E

  	
  Globalstar Dynamic
  Satellite Simulator Requirements Document

  
	
   

  	
  Ref 3474-05-0023 Rev 1_V2, dated November 20, 2006

  
	
  Exhibit G

  	
  Form of Escrow Agreement

  
	
  Exhibit H

  	
  Bonus Payments Criteria
  (EBITDA and satisfactory operation)

  
	
  Exhibit I

  	
  Globalstar Patent
  Portfolio

  



 


(C)                   The scope of this Contract
is the design, production, testing, and delivery of the equipment and services,
as summarized in this Article 2(C), and represents a firm commitment by
Contractor and a firm order by Purchaser for all equipment and services. The
following constitute the Deliverable Items :


 


(i)                         Forty eight
(48) low earth-orbiting communications Spacecraft, one of which shall be a PFM.
The Spacecraft shall be manufactured to meet all requirements of this Contract
(including Exhibits A and B), tested in accordance with Exhibit C, delivered
and processed at the selected Launch Site, or delivered to storage at Purchaser’s
direction, in accordance with Article 29.


 


(ii)                      Two (2) DSSs,
as described in Exhibit E.


 


(iii)                   Launch Support Services for
the Spacecraft, including launch vehicle integration, as generally described in
section 3.4 of Exhibit A.


 


11

















 


(iv)                    Mission Operations Support
Services (including training of Purchaser’s personnel and in-orbit testing of
the Spacecraft), as described in section 3.5 of Exhibit A. As the Contractor
has been awarded a contract for delivery of the Satellite Control Network (Ref
GINC-C-07-0320), and according to Article 3.5 of Exhibit A, Contractor shall
not perform the additional work as set forth in Annex D of Exhibit A.


 


(v)                        Anomaly Support
as described in section 3.5.4 of Exhibit A.


 


(vi)                     Documentation as described
in section 4 of Exhibit A.


 


(vii)                  Satellite OBPE Software for
the Spacecraft as described in section 3.1 of Exhibit A.


 


(viii)               On-board
propellant for each Spacecraft.


 


(ix)                       One (1) Satellite
Mass Simulator as described in Change Proposal Ref 200329592G Rev1


 


In
addition to delivering the Deliverable Items set forth herein, Contractor will
provide all Ground Support Equipment, which shall be used by Contractor and
remain its property.


 


(D)                     The Work shall
be performed pursuant to the following Phases :


 


(i)                           Phase 1 and 2 include
non-recurring engineering and manufacture of a PFM and the manufacture and
delivery of twenty-four (24) Spacecraft with associated Launch Support Services
and MOSS, Long Lead Items (“LLI”) for the anticipation of the advanced delivery
of six (6) Spacecraft from Phase 3 ; and


 


(ii)                        Phase 3 includes the
manufacture and delivery of twenty-three (23) Spacecraft and the PFM with
associated Launch Support Services. For the first successful launch of
Satellites delivered under Phase 3 , Contractor shall assign satellite
specialists (including payload, thermal, AOCS, power, data handling, mission
analysis) to support Purchaser for the early operations (spacecraft
acquisition, stabilization, initialization and orbit raising).


 


In
anticipation of advancing delivery of six (6) Spacecraft of Phase 3, the
Parties agree that the Contractor shall procure the LLI upon EDC2. Purchaser’s
written notification for the completion of the manufacturing and testing of the
six (6) Spacecraft shall be as set forth in Article 26.


 


In
addition, the Purchaser shall have the option to request to the Contractor in
writing the postponement of delivery of either all twenty three (23) Spacecraft
of Phase 3 or the balance of seventeen (17) Spacecraft of Phase 3. The
conditions for such postponement shall be as set forth in Article 26.


 


12

















 


Article 3. Purchaser’s Undertakings


 


(A)                    Purchaser’s undertakings are contained in
or identified in this Contract and Exhibit A. 
In particular, Purchaser shall perform the following :


 


(i)                           Purchaser will
procure the Launch Services to perform the launch mission including the
Satellite(s) dispenser in accordance with one or more Launch Services
Agreements with one or more Launch Services Providers. As promptly as
practicable, and in any event no later than three (3) months after PDR as set
forth in section 3.4.2 of Exhibit A, Purchaser will designate in writing to
Contractor the selected Launch Services Provider(s) (with a maximum of two
(2)), the Launch Sites and the targeted launch periods. Purchaser will also
promptly notify Contractor in the event of any changes in any launch schedule
after Purchaser learns of such changes. Purchaser shall use its reasonable best
efforts to cause each selected Launch Services Provider to name Contractor and
its Subcontractors as additional insureds under each such Launch Services
Provider’s launch risk third-party liability insurance policy.


 


(ii)                        Purchaser will
furnish to Contractor decryptor cards and documentation for each Spacecraft as
set forth in section 6.3 of Exhibit A. The decryptor cards and documentation shall be
transported at Purchaser’s risk and expense Delivered Duty Unpaid, Incoterms
2000, to the place and at the date as set forth in section 6.3 of Exhibit A.
Any defect on such items or part thereof delivered by Purchaser to Contractor
shall be corrected or replaced at Purchaser’s expense and any costs incurred by
Contractor as a result of such defect and documented to Purchaser shall be
borne by Purchaser.


 


(iii)                     Purchaser shall provide, at
Purchaser’s Satellite Operations Control Center (“SOCC”) facilities, two (2) computers
and a Satellite OBPE Software development workstation to host the software for
the DSS as set forth in section 6.6 of Exhibit A.


 


(iv)                    Subject to government
requirements, Purchaser will arrange with the Launch Services Provider to
provide to Contractor and its Subcontractors free of charge access to the
Launch Sites, utilities (including without limitation power, phone and data
lines) and services (including without limitation transportation) at the Launch
Sites necessary to permit Contractor to (i) support the launch schedule; (ii) conduct
testing and (iii) provide the Launch Support Services.


 


(v)                       Subject to
government requirements, Purchaser will provide access to Contractor and its
Subcontractors at each of Purchaser’s SOCC facilities and In Orbit Test
Equipment, on a timely basis, as necessary to permit Contractor to (i) deliver,
install and test the DSSs, and (ii) perform the MOSS.


 


(vi)                    Purchaser shall obtain
Launch Insurance prior to Launch, at coverage levels to be determined at the
sole discretion of Purchaser. In addition, Purchaser shall obtain from its
insurer providing Launch Insurance waivers of any subrogation rights against
Contractor or its Subcontractors, and shall provide evidence of such waivers to
Contractor sixty (60) Days prior to the launch of any Satellite and shall
provide Contractor a certificate of such insurance coverage at Contractor’s
request.


 


13

















 


(vii)                 Purchaser shall be
responsible for obtaining all necessary approvals, authorizations and/or
licenses to launch, test,
control and operate the Satellites.


 


(viii)              Purchaser shall be
responsible for providing in a timely manner the Satellite Control Network as
set forth in Exhibit A.


 


(B)                    Contractor shall promptly notify Purchaser of any
failure by Purchaser to
perform any of its obligations under this Contract which may cause Contractor to be
delayed, to incur additional costs, or both. In addition, Purchaser shall promptly notify
Contractor in writing of any event which may delay or prevent the performance
by Purchaser of
any of its obligations under this Contract which may cause Contractor to be
delayed, to incur additional costs, or both.


 


Any failure by Purchaser
to perform any of its obligations under this Contract which causes
Contractor to be delayed, to incur additional costs, or both, shall cause (i) in
case of delay, an extension of the Delivery Schedule to reflect the actual
delay incurred by Contractor in the performance of the Work as a result of such
failure (such delay to be documented to Purchaser) and (ii) in case of additional costs, payment to
Contractor by Purchaser of reasonable costs incurred by Contractor as a result
of such failure (such costs to be documented to Purchaser).


 


Article 4.  Total Price


 


(A)                  Purchaser shall pay to
Contractor for the Work to be performed the Total Price as set forth in the Table
below in accordance with the payment plans as set forth in Exhibit F, as such
Total Price may be adjusted in accordance with the provisions of this Contract.


 


The Total Price shall
be deemed to include all transportation and insurance charges for delivery of
each Deliverable Item as set forth in Article 6 and Exhibit A.


 


14

















 


	
  Item

  	
   

  	
  Description

  	
   

  	
  Price in Euro for

  Regular Delivery

  	
   

  
	
  1

  	
   

  	
  Spacecraft for Phase 1 and Phase 2 (See Pricing
  Details) *

  	
   

  	
  452,781,326

  	
   

  
	
  1Bis

  	
   

  	
  Rebalancing  ̈Phase 1&2
  and Phase 3 distribution (with payment postponed to Phase 3) (See Pricing Details)**

  	
   

  	
  3,864,000

  	
   

  
	
   

  	
   

  	
  Sub-total Phase 1 & 2

  	
   

  	
  456,645,326

  	
   

  
	
  2

  	
   

  	
  Spacecraft for Phase 3 (See Pricing Details)***

  	
   

  	
  222,240,232

  	
   

  
	
   

  	
   

  	
  Total
  Price

  	
   

  	
  678,885,558

  	
   

  



 






(*)
Pricing Details:


[*]


 


(**)
Pricing Details:


[*]


 


(****) Note that pricing for
Launch Support Services as defined in Exhibit A assumed the performance of
seven (7) launch campaigns with up to two (2) of the four (4) candidate Launch
Vehicles. Upon Purchaser’s selection of the Launch Vehicles and number of
launch campaigns required, Contractor shall review the Launch Support Services
pricing and notify Purchaser of any revised pricing including basis of estimate
for the pricing difference.


 


(B)                      In addition to
the Total Price that Purchaser shall pay in accordance with Article 4(A),
Purchaser shall also be responsible for paying all custom duties, VAT, import
taxes, sales taxes or charges, taxes, fees or duties of similar nature
whatsoever levied in the U.S.A. or any political division thereof or in the
country where the Launch Site is located or the services under this Contract
are performed (except for services rendered in France or Italy or by the
Subcontractors in their countries) or in the country where the Spacecraft is
placed in storage as set forth in Article 29.


 


Such payments will be made by Purchaser in compliance with the
regulations in force at that time and will not be deducted from any payment of
price called for pursuant to Article 4(A) of this Contract. Purchaser shall
reimburse Contractor for any payment to be made by Purchaser pursuant to this Article
4(B) but made by Contractor within thirty (30) Days of receipt by Purchaser of
the electronic invoice with all relevant documentation evidencing liability for
and payment of such tax, fees or duties.


 


(C)                      All payments by
Purchaser pursuant to this Contract shall be made without deduction or offset
of any income taxes, withholding or similar taxes, if any, of any nature
whatsoever levied by Purchaser’s country, any political division thereof or any
other country where the Work is performed or by the country from which payment
is made, unless Purchaser shall be compelled to make such deduction by
government regulation, in which case Purchaser shall pay, within thirty (30)
Days of receipt by Purchaser of the relating electronic invoice, any additional
amount necessary in order that the net amount of payments received by the
Contractor shall be equal to the amount of payments agreed to be paid pursuant
to this Contract.


 


15
















 


(D)                     Contractor
shall be entirely responsible for all present and future taxes, levies and
duties whatsoever imposed under this Contract in (i) France and (ii) any of the
Subcontractors’ countries (including Italy), to the extent relating to the
performance of the Work, which taxes shall be paid by the Contractor or the
Subcontractors when they become due.


 


Article 5. 
Bonus Payments


 


(A)                    Purchaser
and Contractor agree that, at the end of the first quarter of the calendar year
following the later to occur of the delivery of forty-eight (48) Spacecraft and
the successful launch of the twenty-fourth Spacecraft (the “Bonus Payment Start
Date”), and continuing for a period of up to fifteen (15) years thereafter,
Contractor shall annually be eligible to receive from Purchaser a Bonus Payment
payable in arrears and determined as set forth in this Article 5. The total of
such Bonus Payments shall not be more than Seventy-Five Million (75,000,000) US
Dollars.


 


(B)                      Purchaser shall provide to Contractor, by the end of the
first quarter of each year following the date of PSR of the twenty-fourth (24th) Spacecraft, a written statement of Bonus Payment amount and
eligibility comprising of Cumulative EBITDA as defined below, status of
satisfactory operation of the Spacecraft and timeliness of delivery of
Spacecraft. Payment of Bonus Payments shall be due and payable within thirty
(30) Days after the date of receipt by Purchaser of the emailed invoice from
Contractor.


 


(C)                  Bonus Payments shall only be made to the extent that the
financial performance of Purchaser’s business for the period from January 1,
2007 to December 31 of each year is equal to or better than the financial
projections for the business for the same period of time as set forth in Exhibit
H1. Financial performance shall be measured in accordance with GAAP, using the
earnings before interest, taxes, depreciation and amortization of Purchaser for
the total periods in question (“Cumulative EBITDA”).  The annual Bonus Payment shall be further
limited and conditioned as a result of (a) the failure of Satellites to be
delivered on time or to meet the requirements of Exhibit B (as set forth in Article
5(E) and Article 5(F) below) and (b) the failure of Satellites to operate
successfully in orbit (as set forth in Article 5(E) and Article 5(F) below).


 


(i)                           No Bonus Payment shall be made to Contractor whenever
Purchaser’s Cumulative EBITDA for the period from January 1, 2007 to December 31
of the year for which payment of a Bonus Payment would be due is less than the
projected Cumulative EBITDA for the identical period as set forth on Exhibit H1.


 


(ii)                        Whenever Purchaser’s Cumulative EBITDA for the period from January
1, 2007 to December 31 of the year for which payment of a Bonus Payment would
be due is equal to or greater than the projected Cumulative EBITDA for the
identical period, Purchaser shall make the maximum Bonus Payment permissible
pursuant to the terms of this Article 5. Each year Purchaser’s Cumulative
EBITDA exceeds the projected


 


16

















 


Cumulative EBITDA for the
identical period and the conditions of Article 5(E) and Article 5(F) are met,
the annual Bonus Payment of [*] US Dollars shall be paid.


 


(iii)                     For so long as Purchaser may be obligated to pay Bonus Payments
to Contractor pursuant to this Article 5, Purchaser shall calculate Cumulative
EBITDA using the same methodology as is used in Exhibit H1. Nothing in this Article
5 shall prohibit Purchaser from changing its accounting methodology for other
purposes, so long as Purchaser is able and does continue to use the same
methodology to calculate Cumulative EBITDA.


 


(D)                     In each of the fifteen (15) years that a Bonus Payment may be
made, as well as during the years prior to the Bonus Payment Start Date when
Contractor may earn the right to receive Bonus Payment after the Bonus Payment
Start Date, [*] of each such payment or earned right shall be further
conditioned upon the delivery schedule as set forth in paragraphs (E)(i) and
(F)(i) of this Article 5, and [*] of each such payment or earned right shall be
further conditioned upon satisfactory operation of Satellites as set forth in
paragraphs (E)(ii) and (F)(ii) of this Article 5.


 


(E)                       Each year after the delivery of the first twenty-four (24) of
Satellites and prior to the Bonus Payment Start Date, Contractor shall earn the
right to receive a Bonus Payment to be calculated in accordance with this Article
5(E). Such Bonus Payments shall not be paid by Purchaser until the first
payment date after the Bonus Payment Start Date. The Bonus Payment earned for
each year after the delivery of the first twenty-four (24) Satellites until the
Bonus Payment Start Date shall be paid at the same time in addition to the
first annual Bonus Payment to be paid pursuant to this Article 5(E).


 


(i)                           The [*] portion of such Bonus Payment related to timely
delivery shall be earned for each Batch of Spacecraft delivered thirty (30)
Days or less after the scheduled PSR date for the last Spacecraft of that
Batch. Calculation of the Bonus Payment payable for each year of this period
shall be equal to [*] US Dollars times the number of Spacecrafts delivered in
each Batch through the year for which the calculation of the Bonus Payment
earned is made.


 


(ii)                        The remaining [*] portion of the Bonus Payment shall be
earned for each Satellite operating satisfactorily in space according
to the criteria defined in Exhibit H2.
Calculation of the Bonus Payment payable for each year of this period shall be
made by multiplying [*] US Dollars times the number of Satellites operating
successfully as of December 31 of each year for which the calculation is being
made.


 


(F)                       During the period from the Bonus Payment Start Date to the
end of the fifteen (15) year thereafter, Contractor shall be entitled to
receive annual Bonus Payments to be calculated in accordance with this Article 5(F).


 


(i)                           The [*] portion of the annual Bonus Payments related to
timely delivery shall be calculated by multiplying [*] US Dollars times the
number of Spacecraft delivered before or within at least thirty (30) Days after
its scheduled PSR date. The amount shall


 


17

















 


be the portion of each
annual Bonus Payment related to timely delivery for each year during this
period.


 


(ii)                        The remaining [*] portion of the annual Bonus Payments shall
be earned if the number of satisfactorily operating satellites is equal to or
greater than the number given in Table 1 for a given year for a given Delivery
Schedule.  Satellites are deemed to be
satisfactorily operating if the criteria defined in Exhibit H2 are met.
If the number of satisfactorily operating satellites is less than the number
given in Table 1 for a given year but greater than or equal to forty (40), a
reduced Bonus Payment may be made.


 


For each satellite less than the number in Table 1,
the Bonus Payment portion shall be reduced by [*] as long as the total number
of operating satellites is greater than or equal to forty (40). For example, in
2020 if there are only forty-two (42) satisfactorily operating satellites, only
[*] of the possible [*] portion of the annual Bonus Payment shall be paid; if
forty-one (41) satisfactorily operating satellites, only [*] of the possible
[*] portion of the annual Bonus Payment shall be paid; if forty (40) satisfactorily
operating satellites, only [*] of the possible [*] portion of the annual Bonus
Payment shall be paid; however, if only thirty-nine (39) satisfactorily
operating satellites, no portion of the possible [*] portion of the annual
Bonus Payment shall be paid.


 


Table 1


Minimum Number of
Operating Satellites In a Given Year for Regular Delivery Schedule


 


	
   

  	
   

  	
  Regular

  Delivery

  
	
  2011

  	
   

  	
   

  
	
  2012

  	
   

  	
   

  
	
  2013

  	
   

  	
  46

  
	
  2014

  	
   

  	
  46

  
	
  2015

  	
   

  	
  46

  
	
  2016

  	
   

  	
  45

  
	
  2017

  	
   

  	
  45

  
	
  2018

  	
   

  	
  44

  
	
  2019

  	
   

  	
  44

  
	
  2020

  	
   

  	
  43

  
	
  2021

  	
   

  	
  43

  
	
  2022

  	
   

  	
  42

  
	
  2023

  	
   

  	
  42

  
	
  2024

  	
   

  	
  41

  
	
  2025

  	
   

  	
  40

  
	
  2026

  	
   

  	
  12

  
	
  2027

  	
   

  	
  4

  



 


(G)                      For the purpose of this Article 5, a Spacecraft placed in
storage pursuant to Article 29 or a Spacecraft which is a total loss as a
result of a launch failure shall be deemed to


 


18

















 


be
operating in orbit satisfactorily. In addition, the conditions of Articles 5(E)(i)
and 5(F)(i) relating to late delivery shall apply to a Spacecraft put into
storage.


 


(H)                               Should the Purchaser decide
to exercise the option to postpone the delivery of Spacecraft from Phase 3 as
set forth in Article 26 or the total number of Spacecraft to be delivered under
the Contract be less than 48, then the Parties agree, in good faith, to adjust
accordingly the present Article 5 for purpose of Bonus Payment on an
appropriate basis.


 


Article 6. 
Delivery and Delivery Schedule


 


(A)                  The Delivery Schedule is
identified in the Table below. Delivery of a Spacecraft (other than Spacecraft
delivered for storage as directed by Purchaser in accordance with Article 29)
shall be deemed to have occurred at Pre-Shipment Review. Delivery of a DSS shall be
deemed to have occurred upon completion of the Simulator Completion Review. Delivery of Satellite Mass
Simulator shall be deemed to have occurred upon Mass Simulator Delivery Review
Board.


 


	
  Item

  	
   

  	
  Description

  	
   

  	
  Delivery Date or

  Date of Performance

  	
   

  	
  Delivery Place

  
	
  1

  	
   

  	
  Spacecraft

  	
   

  	
  Per Exhibit F

  	
   

  	
  Contractor’s facilities

  
	
  2

  	
   

  	
  Satellite Propellant

  	
   

  	
  Per Exhibit A

  	
   

  	
  Per Article 6(C)

  
	
  3

  	
   

  	
  DSS

  	
   

  	
  Per Exhibit A

  	
   

  	
  Milpitas, CA

  El Dorado Hills, CA

  
	
  4

  	
   

  	
  Satellite OBPE Software

  	
   

  	
  Per Exhibit A

  	
   

  	
  Milpitas, CA

  
	
  5

  	
   

  	
  Launch Support Services

  	
   

  	
  Per Exhibit A

  	
   

  	
  Launch Site

  
	
  6

  	
   

  	
  MOSS

  	
   

  	
  Per Exhibit A

  	
   

  	
  Milpitas, CA

  
	
  7

  	
   

  	
  Documentation

  	
   

  	
  Per Exhibit A

  	
   

  	
  Milpitas, CA

  
	
  8

  	
   

  	
  Satellite Mass Simulator(*)

  	
   

  	
  Sept 01, 2009

  	
   

  	
  France, Arianespace (Bordeaux)

  



 






(*) At the end of the tests, the
Purchaser shall ship back to Contractor’s facility in Cannes the satellite mass
simulator with its container for destruction purposes. The satellite mass
simulator will therefore be delivered on a temporary basis. Cost for the
shipping back to Cannes shall be paid by the Contractor.


 


(B)                    The delivery dates for Spacecraft to be
delivered under Phase 3 shall be made pursuant to the Regular Delivery as set
forth in Exhibit F and the payment plan shall be the one corresponding to the
Regular Delivery as set forth in Exhibit F.


 


(C)                    Each Spacecraft which is
Available for Shipment shall be transported along with associated Ground
Support Equipment at Contractor’s risk and expense Delivered Duty Unpaid,
Incoterms 2000, to the airport nearest to the Launch Site selected for the
launch of the respective Spacecraft, unless Purchaser directs Contractor to
deliver the Spacecraft to storage in accordance with Article 29.


 


19

















 


The
propellant shall be transported at Contractor’s risk and expense Delivered Duty
Unpaid, Incoterms 2000, to the harbour agreed with the Launch Service Provider.
The Launch Service Provider shall be responsible at its own costs to transport (i)
the Spacecraft from the airport to the Launch Site, (ii) the propellant from
the harbour to the Launch Site, and (iii) the Satellites and the propellant
within the Launch Site.


 


If
the Spacecraft requires repair after delivery to the Launch Site, all
transportation from the Launch Site to the repair facility and back shall be at
the expense of Contractor. Contractor shall be responsible at its risk and
expense for removing or disposing all of its Ground Support Equipment and
remaining Satellite propellant, if any, used on or brought to the Launch Site
from the Launch Site after completion of launches.


 


The
DSSs, the Satellite OBPE Software and the Satellite Mass Simulator shall be
transported at Contractor’s risk and expense Delivered Duty Unpaid, Incoterms
2000, to the required destination as specified in the Table above.


 


(D)                   The Contractor shall promptly notify Purchaser in
writing of any event which may delay or prevent the performance by Contractor of
any of its obligations under this Contract.


 


Article 7. 
Payment


 


(A)                    Payment terms shall be in
accordance with this Article 7 and Exhibit F to this Contract. Purchaser shall
pay all invoices (excluding the Amended and Restated Contract down payment)
within thirty (30) Days after the date of receipt of an emailed invoice
confirmed electronically. Purchaser shall have the right to draw down from the
Escrow Fund to make payments if the Balance of the Escrow Fund is greater than
the Deposit Requirement for the then current Quarter or if the Parties mutually
agree to a draw down.


 


(i)                           Starting January
1, 2007 and until the Contract is paid in full, Contractor shall on the first
Day of each quarter provide Purchaser with one (1) original of the invoice for
the total amount of payments due during that quarter, including both calendar
payments and payments for Milestone Events, in accordance with Exhibit F. So
there is no misunderstanding, the Parties agree that the invoice for and
payment of the first payment (fourth quarter of 2006) shall be handled as set
forth in Article 32.


 


(ii)                        Beginning with the quarter that starts April 1, 2007, Contractor shall
deliver to Purchaser, along with each quarterly invoice, supporting
documentation confirming completion of the Milestone Events which were to have
been achieved during the quarter prior to the quarter in which the invoice is
delivered.


 


(iii)                      Notwithstanding
paragraph (i) and (ii) above, beginning with the period that starts July 1,
2008 and ending beginning of the first yearly quarter following EDC2,
Contractor shall invoice Purchaser
monthly payments in accordance with Exhibit F. 
Contractor shall provide supporting documentation confirming completion
of Milestone


 


20

















 


Events
which were to have been achieved during the previous quarter with first monthly
invoice of the following quarter.


 


(B)                      Should Contractor fail to
achieve during a given quarter one or more Milestone Events for which payment
has already been made, then Contractor shall deduct the amount relating to each
such unachieved Milestone Event from the invoice Contractor delivers at the
beginning of the following quarter.


 


Except as set forth in the
preceding sentence, any delay in the achievement of a particular Milestone
Event will have no impact on the amount invoiced at the beginning of the
subsequent quarter.  Any amount deducted
in accordance with this Article 7(B) will be re-invoiced with supporting
documentation submitted with the invoice for the quarter following completion
of such Milestone Event, and Purchaser shall make payment to Contractor in
accordance with such invoice after such completion.


 


(i)                           If after five (5) Business Days from the
date of receipt of an invoice, Purchaser has not notified Contractor of a
dispute of the invoice, stating the reason for such dispute, then all Milestone
Events scheduled to occur during the preceding quarter shall be deemed
complete, and payment shall be due and payable within thirty (30) Days of
receipt of the emailed invoice. For purposes of Exhibit F, a Milestone Event
shall be deemed to have been completed by Contractor when all requirements
associated with the particular Milestone Event shall have been completed in
accordance with the provisions of the Contract.


 


(ii)                        If Purchaser disputes only part of a Milestone
Event, then Purchaser shall pay to the Contractor the amount corresponding to
the undisputed portion of such Milestone Event.


 


The Parties agree to negotiate in good faith the
settlement of the disputed portion and the agreed upon amount shall be paid by
Purchaser after such settlement. No dispute with respect to the payment of any
amount under this Contract shall relieve the disputing Party of its obligation
to pay all other amounts due and owing under this Contract. The Parties agree
that in no event shall there be a dispute about a calendar payment, and that a
dispute over a Milestone Event payment shall not relieve Purchaser of its
obligation to make subsequent payments.


 


(C)                    RESERVED


 


21

















 


(D)                   Contractor may, from time to time, submit
an invoice requesting partial payment for a partially completed Milestone
Event. If Purchaser, in Purchaser’s reasonable judgment, determines such
partial payment to be appropriate under the circumstances, then Purchaser shall
make such partial payment, and the remainder of the Milestone Event payment
shall be paid at such time as the Milestone Event is completed.


 


(E)                 In the event that Contractor
achieves any Milestone Event in advance of the scheduled achievement date
provided for in Exhibit F and provided that the cumulative amount of payments
shall not exceed the schedule set forth in Exhibit F, then, subject to
Purchaser’s agreement, the Contractor shall be entitled to invoice the
Purchaser for such achieved Milestone Event. Purchaser shall pay for any such
Milestone Event, subject to having received the required supporting
documentation.


 


In
the case where the Contractor would achieve Schedule Saving in the frame of the
implementation of Early Delivery ED2, the Contractor shall be entitled to
invoice the Purchaser for Early Delivery Incentives. In this case, payments may
exceed the cumulative amount of payments set forth in Exhibit F.


 


Should
the Purchaser decide to advance the delivery of 6 Spacecraft from Phase 3 as
set forth in Article 26 or to postpone the delivery of Phase 3 Spacecraft as
set forth in Article 26, the payments shall be set forth as illustrated in Exhibit
F2 or F3 respectively.


 


(F)                     Unless otherwise agreed in
writing by the Party entitled to payment, all transfers of funds in accordance
with this Contract from one Party to the other Party shall be sent to the
receiving Party by wire transfer of immediately available funds to the
following bank accounts :


 


Thales
Alenia Space France


 


For payments in Euros
:


Thales Alenia Space France


Société Générale Toulouse


Address : Innopole Voie 8 - BP 500 – 31316 Labège Cedex, France


Swift Code : [*]


Account n° [*]


 


For payments in US
Dollars :


Thales Alenia Space
France


ABN AMRO BANK


New-York Branch


Address : 55 East 52
Street, New York, New York 10055,U.S.A.


Swift Code : [*]


Routing Number [*]


Account n° [*]


 


22

















 


Globalstar,
Inc.


 


	
  For payments in US Dollars :

  
	
  Account Name:

  	
  Collection Account

  
	
  Bank Name:

  	
  Union Bank of California

  
	
   

  	
  [*]

  
	
  A/C:

  	
  Globalstar, Inc. [*]

  
	
  Account Number:

  	
  [*]

  
	
  Bank Address:

  	
  IS&AM, Domestic Custody

  
	
   

  	
  350 California Street, 6th Floor

  
	
   

  	
  San Francisco, CA 94104 U.S.A.

  
	
  Swift Details:

  	
  [*]

  



 


or such other
account as the relevant Party may specify from time to time in writing.


 


Any
payment due by Purchaser shall be deemed to have been made when the Contractor’s
bank account has been credited of the amount of such payment.


 


If any payment would
otherwise be due under this Contract on any Day that is not a Business Day,
such payment shall be due on the succeeding Business Day.


 


(G)                    Payments required to be made
by either Party to this Contract and not received within the due date plus ten (10)
Days shall bear interest at the Interest Rate for each Day from the tenth (10th) Day following the due date
until the date of actual payment. Such interest due pursuant to this Article 7(G)
will be included in the next quarterly invoice. In the event the Contractor
elects to draw from the Escrow Account as set forth in Article 22(B), then the
provisions of this Article 7(G) shall not apply.


 


(H)                     The Contractor shall send
one (1) copy of each invoice to Purchaser by email to [*] with confirming email
to [*]and, as applicable, one (1) copy in parallel to the Lender.


 


The Contractor may request status of payment
by calling [*] in Accounts Payable at [*].


 


The address reference to be put on the
invoice is :


Globalstar, Inc.


461
South Milpitas Boulevard


Milpitas,
California 95035, U.S.A.


 


The
Contractor may send one (1) hard copy of each invoice to Purchaser at address
referenced above to the attention of [*].


 


I)                            Until EDC2, invoices from the Contractor shall
be paid through direct bank transfers from Purchaser to Contractor.


 


As of EDC2, for the payment of the balance of the
Price for Phase 1 and 2 and LLI for 6 Spacecraft from Phase 3), Purchaser has
entered into an Export Credit Facility. As a 


 


23

















 


result thereof, all invoices from the Contractor
issued after EDC2 shall be paid to the Contractor according to the payment plan
in Exhibit F and through drawings under the Export Credit Facility. Such
drawings under the Export Credit Facility shall be made against presentation by
the Contractor to the Lender of the documents required under the Contract duly
approved by the Purchaser.


 


At EDC2, the Parties have agreed that the balance of
funds in the Escrow Account shall be released and returned to the Purchaser.


 


After
EDC2, any deviations to the foregoing payment provisions shall be mutually
agreed upon by the Parties.


 


J)                           ALL
PAYMENTS TO BE MADE ACCORDING TO EXHIBIT F FOR THE BALANCE OF PHASE 1&2
AFTER EDC2 SHALL BE INVOICED IN EUROS BY THE CONTRACTOR AND PAID IN UNITED
STATES DOLLARS USING THE EXCHANGE RATE STIPULATED IN THE EXPORT CREDIT FACILITY
AGREEMENT.


 


Article 8. 
Inspection and Acceptance


 


Contractor shall
perform the following tests and reviews:


 


(A)                  Spacecraft


 


(i)                       Each Spacecraft
shall undergo a Pre-Shipment Review, as described in section 5.8 of Exhibit A. Purchaser shall notify Contractor of its
acceptance or objection of the Pre-Shipment Review within one (1) Day following
performance of the PSR. Failure of Purchaser to so notify Contractor shall be
deemed to constitute acceptance of said PSR. Upon successful completion
of the Pre-Shipment Review (i.e. Pre-Shipment Review complies with the provisions of section 5.8 of Exhibit
A), the Parties shall sign a Pre-Shipment Review Acceptance Certificate. If
Purchaser objects, it shall provide detailed reasons for such objection to
Contractor within two (2) Days of performance of such Pre-Shipment Review.


 


Contractor shall then
proceed to resolve the reason for the objection and upon resolution the Parties
shall sign the Pre-Shipment Review Acceptance Certificate. After completion of
the PSR, the Spacecraft shall be deemed Available for Shipment and Purchaser
will provide to Contractor shipment directions.


 


(ii)                    Upon arrival of a Spacecraft
at the Launch Site, Contractor shall promptly conduct a Satellite Post-Shipment
Verification Review for each Spacecraft. Thereafter, Contractor shall perform
tests in accordance with the Launch Site Test Plan and relevant portions of Exhibit
C, in the presence of Purchaser unless Purchaser advises Contractor that such
tests can be performed in its absence.


 


24
















 


(iii)                 Contractor shall then conduct a Flight
Readiness Review as set forth in section 5.10 of Exhibit A, whereupon
Contractor shall either certify Spacecraft compliance or notify Purchaser of
those items which fail to meet the requirements of Exhibits B and C.  Upon Contractor certification of Spacecraft
compliance, or upon satisfactory completion by Contractor of other conditions
sufficient to remedy those items that failed to meet the requirements of
Exhibits B and C, mutually acceptable to Purchaser and Contractor, FRR shall be
deemed successfully completed and Contractor shall be authorized to proceed to
the Launch Readiness Review.


 


(iv)                Each Spacecraft shall undergo a LRR, as
described in section 5.11 of Exhibit A. If the LRR complies with the provisions of section 5.11 of
Exhibit A,
Purchaser shall notify Contractor of its acceptance of the LRR following
completion. Upon such notification, a Spacecraft shall be ready
for launch unless, at any time prior to Intentional Ignition, Contractor shall
notify Purchaser if a Spacecraft is not ready for launch.  Upon such notification and prior to launch,
Contractor shall remedy such particulars or satisfactorily complete other
conditions mutually acceptable to Purchaser and Contractor.


 


(v)              Final
Acceptance of a Spacecraft not being delivered into storage shall occur upon
Intentional Ignition, except that in case of occurrence of an event as set
forth in Article 9(C), Final Acceptance shall be deemed not to have
occurred. Final Acceptance of a Spacecraft being delivered into storage shall
be made upon delivery of the Spacecraft to the storage site, in accordance with
the provisions of Article 29.


 


(B)                      DSSs


 


(i)                       Contractor shall conduct a Factory
Acceptance Test Review on the DSSs at Contractor’s facilities. Upon successful
completion of the Factory Acceptance Test Review, Contractor shall so certify
to Purchaser. Purchaser shall have two (2) Days from receipt of such
certification to notify Contractor in writing of those particulars which do not
meet the requirements of the Contract.


 


Upon
such notification by Purchaser, Contractor shall remedy such particulars or
satisfactorily complete other conditions mutually acceptable to Purchaser and
Contractor after which Contractor shall proceed to ship each DSS to the designated
DSS site. If Purchaser does not so notify Contractor within two (2) Days,
Contractor shall proceed to ship each DSS to the designated DSS site.


 


(ii)                    A Simulator Completion Review shall be
conducted following full and complete installation and testing of the DSS at
the designated DSS Site in accordance with Exhibit A.  Contractor and Purchaser shall, within two (2) Days
after the successful completion of Simulator Completion Review, certify in
writing on a form, mutually agreed, that Final Acceptance of the DSSs has
occurred. If Purchaser fails to reject or certify acceptance within such two (2) Days
after the successful completion of Simulator Completion Review, Final
Acceptance of the DSSs shall be deemed to have occurred.


 


25

















 


(iii)                 If a DSS is non-conforming to the
specifications defined in Exhibit E, Purchaser shall so notify Contractor
(with detailed reasons for such non-compliance given in the notification), and
such non-compliance shall be corrected by Contractor.  Upon such correction, followed by a delta
Simulator Completion Review, if necessary, acceptable to Purchaser, Final
Acceptance shall be deemed to have occurred.


 


(C)                    Upon
completion of a Milestone Event other than for PSRs as set forth in Article 8
(A), Contractor shall issue and send to Purchaser a Milestone Event acceptance
certificate. Purchaser shall notify Contractor of its acceptance or rejection
of a Milestone Event within five (5) Business Days from the date of
receipt of the Milestone Event acceptance certificate, failing which such
Milestone Event shall be deemed successfully completed. In case of acceptance,
the Parties shall sign the Milestone Event acceptance certificate. In case of
rejection, Purchaser shall state in writing the reasons for such rejection and
Contractor shall implement necessary corrective measures. After such correction
to the satisfaction of Purchaser, such Milestone Event shall be deemed
successfully completed and the Parties shall sign the Milestone Event
acceptance certificate.


 


Article 9.  Title and Risk of Loss


 


(A)                  Subject to the
provisions of this Contract :


 


(i)                         title to and
risk of loss for a Spacecraft and propellant on board such Spacecraft shall
pass from Contractor
to Purchaser upon Intentional Ignition, except as provided in Articles 9(C) and 9(E).


 


(ii)                      risk of loss
for DSSs shall pass from Contractor to Purchaser upon Delivery to the place set
forth in Article 6. Title to DSS shall pass from Contractor to Purchaser
upon Final Acceptance thereof.


 


(iii)                 risk of loss
and title to for the Satellite OBPE Software shall pass from Contractor to
Purchaser upon Delivery to the place set forth in Article 6.


 


(iv)                risk of loss
and title to for the Satellite Mass Simulator shall pass from Contractor to
Purchaser upon Delivery to the place set forth in Article 6.


 


Any loss or damage to such items prior to Purchaser’s assumption of
risk of loss shall be at Contractor’s risk, unless such loss or damage is
caused by the negligent acts or omissions or wilful misconduct of Purchaser.


 


(B)                    Title to
Spacecraft, propellant on board the Spacecraft, Satellite OBPE Software, DSSs
and Satellite Mass Simulator shall pass to Purchaser free and clear of any
claims, liens, encumbrances and security interests of any nature. Contractor
shall not grant to third parties any lien, encumbrance or security interest of
any nature on Spacecraft, 


 


26

















 


propellant on board the Spacecraft, Satellite OBPE Software, DSSs and
Satellite Mass Simulator.


 


(C)                    Contractor
hereby agrees following Intentional Ignition, should the launch sequence be
successfully terminated prior to lift-off of the Launch Vehicle, then at the
subsequent time the launch pad is declared safe by the Launch Services Provider,
title, care, custody and control and risk of loss to Spacecraft and propellant
shall revert to Contractor.  In the event
of such an occurrence, Contractor shall be paid by Purchaser for additional
documented costs, if any, incurred by Contractor in relation to additional
premium due directly as the result of an extension by it of any insurance
policy it may have relating to the Spacecraft.
This paragraph may be adjusted as necessary to be consistent with
the Launch Services Agreement and the Launch Insurance policy.


 


(D)                   Should the
subsequent launch following an aborted launch as set forth in Article 9(C) above,
be delayed through no fault of Contractor, and any Spacecraft has to be removed
from the Launch Vehicle and has to be returned to Contractor’s facility or a
designated storage site at Launch Site, all costs resulting from extension of
the period for the launch campaign (including costs associated with on-orbit
support personnel already deployed to other locations) shipping costs, costs
for re-testing and restoring the Spacecraft to flight-worthy condition,
off-site storage charges (if any) and insurance coverage for return to the
Launch Site and subsequent launch will be at Purchaser’s expense, as determined
pursuant to Article 19(C).


 


(E)                     In the event a Spacecraft is
placed in storage as set forth in Article 29(A), title and risk of loss to
such Spacecraft shall pass to Purchaser upon both completion of the tasks
specified for placement into storage as required by the Storage Plan and
payment to Contractor of all outstanding amounts as set forth in Exhibit F
less an amount of [*] Euros per Spacecraft stored corresponding to the portion
of the Launch Support Services and MOSS not yet performed. This amount will be paid to
Contractor at the time of removal of the Spacecraft from storage.


 


Prior to storage, Contractor shall file (or
shall cause a Subcontractor to file), on behalf of Purchaser and at Purchaser’s
expense, necessary application with custom authorities for the issuance of an
active job processing, or any other adequate instrument, with respect to a
stored Spacecraft in order to get an exemption of taxes and duties.


 


Article 10.  Access to Work in Progress


 


(A)                  Subject to
applicable government regulations, Contractor shall afford Purchaser access to
all WIP, including without limitation Technical Data and information, test
data, documentation (not containing cost information), testing and hardware,
being performed at Contractor’s facilities pursuant to this Contract during the
period of Contract performance as set forth in section 1.5 of Exhibit A,
provided that such access does not unreasonably interfere with such WIP or any
other work.


 


27

















 


(B)                    Contractor
shall afford Purchaser access to WIP being performed pursuant to this Contract
in Subcontractor’s facilities to the extent Contractor obtains such access,
subject to the right of Contractor to accompany Purchaser on any such visit and
subject further to the execution by Purchaser of such non-disclosure or similar
agreements as may be required by Subcontractors. Contractor shall use its best
efforts to obtain access to the WIP being performed in Subcontractor’s
facilities.


 


Article 11.  Progress Meeting, Presentations and Reports


 


(A)                  In addition to
any other meetings called for under the provisions of this Contract, Contractor
shall provide the personnel, facilities, materials and support to conduct the
following meetings and presentations with Purchaser, provided that such
meetings and presentations do not unreasonably interfere with Contractor’s
performance: (i) informal Program Manager meetings ; (ii) informal
project level technical review meetings ; and (iii) management level
presentations as deemed appropriate by Contractor or Purchaser’s management and
subject to reasonable prior notice by Purchaser.


 


(B)                    Contractor
shall deliver to Purchaser all reports as described in Exhibit A. The
Parties agree to utilize a secure, electronic-based system for delivery of
reports and documents (which may include exceptions on its use for certain
documents).


 


Article 12.  Intellectual Property Rights


 


(A)                  Purchaser shall
protect all Intellectual Property to which Purchaser has a right of access
pursuant to Article 10, or that is or may be disclosed by Contractor to
Purchaser, from disclosure to third parties in the same manner in which
Purchaser protects its own IP, in accordance with and subject to Article 14.


 


(B)                    Notwithstanding
any other provision of this Contract, the ownership in and title to Background
IP delivered to Purchaser by Contractor in accordance with this Contract shall
remain in Contractor or its licensors. 
Contractor hereby grants to Purchaser a fully paid up, non-exclusive,
perpetual, irrevocable (except as set forth herein), world-wide and
non-transferable (except as part of a sale of the business or by operation of
law) license (with right to sublicense to third parties) to use, duplicate,
adapt, make derivatives and disclose its Background IP (and its related
documentation) and other Deliverable Items for the use, operation, enhancement
and maintenance of the Globalstar System pursuant to this Contract and the
existing Globalstar network.


 


(C)                    Title to all Foreground IP shall remain
with Contractor, provided, that Contractor shall not use or have, or permit
others to use, Foreground IP related to the payload of the Spacecraft for the
purpose of engaging in business activity that would be in direct competition
with the Globalstar System. Contractor hereby grants to Purchaser a fully paid up, non-exclusive,
perpetual, irrevocable (except as set forth herein), world-wide and non-transferable (except as
part of a sale of the business or by operation of law) license 


 


28

















 


(with right to sublicense to third parties) to use, duplicate, adapt,
make derivatives and disclose its Foreground IP (and its related documentation)
and other Deliverable Items for the use, operation, enhancement and maintenance
of the Globalstar System pursuant to this Contract, the existing Globalstar
network and future similar contracts and such Globalstar network as it will
exist under such future similar contracts.


 


(D)                   Purchaser
hereby grants to Contractor a fully paid up, non-exclusive, perpetual,
irrevocable (except as set forth herein), world-wide and non-transferable
(except as part of a sale of the business or by operation of law) license (with
right to disclose to Subcontractors who are signatories of the TAA as set forth
in Appendix 2) to use, adapt and disclose the patents identified as being “granted”
as set forth in Exhibit I for the purpose of performance of the Work under
this Contract. In addition, Contractor reserves the right to request and
receive copies of Technical Data which are owned by Purchaser for use for the
performance of the Work.  Purchaser
grants to Contractor a license to use such Technical Data under the same type
of license as Purchaser grants to Contractor in this Article 12(D),
subject to the TAA.


 


Article 13.  Public Release of Information


 


(A)                  During the term
of this Contract, neither Party, nor its affiliates, subcontractors, employees,
agents and consultants, shall release items of publicity of any kind including,
without limitation, news releases, articles, brochures, advertisements, prepared
speeches, company reports or other information releases related to the work
performed hereunder, including the denial or confirmation thereof, without the
other Party’s prior written consent.


 


(B)                    Notwithstanding
the foregoing, it is understood by the Parties that Contractor is authorized to
release information relative to the Work as may be required to notify its other
customers as to satellite performance issues, provided that such information
shall contain no identification of Purchaser or Purchaser’s designation of
Work, subject to government requirements.


 


(C)                    Nothing
contained herein or in the Mutual Nondisclosure Agreement between Purchaser and
Contractor, dated November 2, 2006 shall be deemed to prohibit either
Party from disclosing this Contract, in whole or in part, or information
relating thereto (i) as may be required by the rules and regulations
of a government agency with jurisdiction over the disclosing Party or a stock
exchange on which the disclosing Party’s shares are then listed, (ii) as
may be required by a subpoena or other legal process (iii) in any action
to enforce its rights under this Agreement, (iv) to its lenders under
appropriate assurances of confidentiality for the benefit of the disclosing
Party or (v) to its auditors, attorneys and other professional advisors in
the ordinary course, provided that such auditors, attorney and advisors have
contractual or professional obligations to maintain the confidentiality of the
disclosed material. The disclosing Party shall use reasonable commercial
efforts to disclose only such information as it believes in good faith it is
legally required to disclose pursuant to clauses (i) or (ii), above, and
will seek, to the 


 


29

















 


extent reasonably available under applicable
rules, to obtain confidential treatment for any information either Party
reasonably considers trade secrets and that is required to be disclosed. To the
extent practicable, the disclosing Party shall provide the other Party with a
reasonable opportunity in advance of disclosure to request redactions or
deletions of specific terms and provisions of the Contract and shall
accommodate those requests to the extent reasonably consistent with applicable
confidential treatment rules.


 


(D)                   Within
a reasonable time prior to a proposed issuance of news releases, articles,
brochures, advertisements, prepared speeches, and other such information
releases concerning the Work performed hereunder, the Party desiring to release
such information shall request the written approval of the other Party
concerning the content and timing of such releases.  The Parties anticipate the issuance of press
releases in connection with the execution of the Contract, which press releases
shall be subject to approval by both Parties prior to release.


 


Article 14.  Confidentiality


 


The Parties agree that all exchanges of proprietary information shall
be governed by the Mutual Nondisclosure Agreement between Purchaser and
Contractor, dated November 2, 2006 as set forth in Appendix 1, as such
Agreement may be amended.


 


Article 15.  Intellectual Property Rights Indemnity


 


(A)                  Contractor
shall indemnify, defend and hold harmless Purchaser and its affiliates and
their respective directors, officers, agents and employees, against any claims,
damages, losses, costs (including attorneys’ fees) incurred in connection with
any claim, suit, or proceeding asserted or filed against Purchaser relating to
infringement of any patent, copyright, trade secret, trademark or other
proprietary right based on the laws of the United States and EU, or a country
where Contractor or any Subcontractor is located (except that such
indemnification shall not apply to any patent identified as being “granted” as
set forth in Exhibit I), by any Spacecraft, Mass Simulator or DSS to be
delivered hereunder, or any part thereof or arising out of Contractor’s
performance of its obligations under the Contract.  Purchaser shall notify Contractor promptly in
writing of any such claim, suit or proceeding, and give Contractor proper and
full information, of which it is aware, and reasonable assistance to settle
and/or to defend any such claim, suit, or proceeding. At its option and
expense, Purchaser may participate in the defense of such claim, suit or
proceeding with counsel of its own choosing. In addition, the indemnification
shall also apply if in the reasonable opinion of Contractor’s outside
intellectual property counsel, any Spacecraft, Mass Simulator or DSS to be
delivered hereunder or any part thereof may become the subject of any claim,
suit, or proceeding for infringement of any such patent, copyright, trade
secret, trademark or other proprietary right.


 


30

















 


(B)                    In case of such
a claim as set forth in Article 15(A), Contractor shall, at its option and
expense, either (i) procure for Purchaser the right under such patent,
copyright, trade secret, trademark or other proprietary right, to use, lease,
or sell, as appropriate, such Spacecraft, Mass Simulator or DSS, or part
thereof, or (ii) replace or modify such Spacecraft, Mass Simulator or DSS,
or part thereof, so that it becomes non-infringing but continues to meet the
requirements of the Contract.


 


(C)                    Contractor
shall have no liability for and the provisions of Article 15(A) shall
not apply for any infringement arising from (i) the combination of such
Spacecraft, Mass Simulator or DSS, part thereof or process practiced therein
with any other Spacecraft or DSS or part not furnished to Purchaser by
Contractor unless such Spacecraft, Mass Simulator or DSS, part or process
furnished by Contractor contributorily infringes, or (ii) the modification
of such Spacecraft, Mass Simulator or DSS, part thereof or process practiced
therein, unless such modification was made or authorized by Contractor, or (iii) the
use of any patent identified as being “granted” as set forth in Exhibit I.


 


(D)                   Contractor’s
total liability to Purchaser under this Article 15 shall not exceed [*]%
of the Total Price. This Article 15 states the entire obligation of
Contractor and the exclusive remedy of Purchaser, with respect to any alleged
patent, copyright, trade secret or trademark infringement by such product or
part or process.


 


Article 16.  Limitation of Liability


 


(A)                  THE PARTIES EXPRESSLY RECOGNIZE THAT
COMMERCIAL SPACE VENTURES INVOLVE SUBSTANTIAL RISKS AND RECOGNIZE THE
COMMERCIAL NEED TO DEFINE, APPORTION AND LIMIT CONTRACTUALLY ALL OF THE RISKS
ASSOCIATED WITH THIS COMMERCIAL SPACE VENTURE. 
THE PAYMENTS AND OTHER REMEDIES EXPRESSLY SET FORTH IN THIS CONTRACT
FULLY REFLECT THE PARTIES’ NEGOTIATIONS, INTENTIONS AND BARGAINED-FOR
ALLOCATION OF THE RISKS ASSOCIATED WITH COMMERCIAL SPACE VENTURES.


 


EXCEPT AS SPECIFICALLY PROVIDED IN THIS CONTRACT,
CONTRACTOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH
RESPECT TO THE CONTRACT OR THE PERFORMANCE OF THE CONTRACTOR OR THE WORK
HEREUNDER, WHETHER ARISING AT LAW OR IN EQUITY AND ALL SUCH WARRANTIES AND
REPRESENTATIONS, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY ARE, TO THE EXTENT
PERMITTED BY LAW, EXCLUDED.


 


(B)                    IN NO EVENT
SHALL CONTRACTOR OR ITS SUBCONTRACTORS BE LIABLE TO PURCHASER FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING ANY LOSS OF
PROFIT OR ANY OTHER SIMILAR LOSS) WHETHER ARISING IN CONTRACT, TORT, STRICT
LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY


 


31

















 


RESULTING FROM ANY BREACH OF THIS CONTRACT OR WITH RESPECT TO ANY
DEFECT, NON-CONFORMANCE OR DEFICIENCY IN ANY INFORMATION, INSTRUCTIONS,
SERVICES OR OTHER THINGS PROVIDED PURSUANT TO THIS CONTRACT.  THE FOREGOING EXCLUSION SHALL APPLY WHETHER
OR NOT FORESEEABLE OR EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.  SPECIFICALLY, BUT WITHOUT
LIMITATION TO THE FOREGOING, CONTRACTOR AND ITS SUBCONTRACTORS SHALL NOT BE
LIABLE TO PURCHASER FOR ANY SUCH DAMAGES RESULTING FROM ANY LOSS OR DESTRUCTION
OF A SPACECRAFT OR FAILURE OF A SPACECRAFT OR ITS SUBSYSTEMS TO OPERATE
SATISFACTORILY.


 


(C)                    IN NO EVENT
SHALL PURCHASER BE LIABLE TO CONTRACTOR OR ITS SUBCONTRACTORS FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING ANY LOSS OF
PROFIT OR ANY OTHER SIMILAR LOSS) WHETHER ARISING IN CONTRACT, TORT, STRICT
LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY RESULTING FROM ANY BREACH OF
THIS CONTRACT.  THE FOREGOING EXCLUSION
SHALL APPLY WHETHER OR NOT FORESEEABLE OR EVEN IF PURCHASER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.


 


(D)                   PURCHASER AND
CONTRACTOR SHALL BE BOUND TO THE FLOW-DOWN REQUIREMENTS OF THE LAUNCH SERVICES
AGREEMENT APPLICABLE TO CONTRACTOR REGARDING ALLOCATIONS OF RISK, WAIVERS OF
SUBROGATION, INDEMNIFICATIONS AND INTER-PARTY WAIVERS OF LIABILITY INVOLVED IN
LAUNCH OPERATIONS.  SUCH FLOW-DOWN SHALL
BE INCLUDED IN AN AMENDMENT TO THIS CONTRACT TO BE ENTERED INTO AND CONFIRMED
BETWEEN THE PARTIES PRIOR TO THE COMMENCEMENT OF LAUNCH SUPPORT SERVICES.


 


(E)                     PURCHASER
AGREES TO ENTER INTO AGREEMENTS WITH THE LAUNCH SERVICES PROVIDER TO DISCLAIM
ANY LIABILITY OF CONTRACTOR TO THE LAUNCH SERVICES PROVIDER FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES. PURCHASER ALSO AGREES TO CAUSE ITS
LAUNCH RISK INSURERS TO WAIVE ALL RIGHTS OF SUBROGATION AGAINST CONTRACTOR AND
SUBCONTRACTORS.


 


(F)                       BOTH
PARTIES’ SOLE AND EXCLUSIVE REMEDIES AND OBLIGATIONS FOR ANY BREACH OF THIS
CONTRACT OR WITH RESPECT TO ANY DEFECT, NON-CONFORMANCE OR DEFICIENCY IN ANY
INFORMATION, INSTRUCTIONS, GOODS, SERVICES OR OTHER THINGS PROVIDED PURSUANT TO
THIS CONTRACT ARE LIMITED TO THOSE SET FORTH IN THIS CONTRACT, AND ALL OTHER
REMEDIES OR RECOURSE AGAINST THE OTHER PARTY OF ANY KIND ARE EXPRESSLY
DISCLAIMED AND FOREVER WAIVED.


 


32

















 


(G)                      NOTWITHSTANDING
ANY OTHER LANGUAGE IN THIS CONTRACT TO THE CONTRARY, CONTRACTOR’S TOTAL
LIABILITY TO PURCHASER SHALL NOT EXCEED [*] OF THE TOTAL PRICE. NOTWITHSTANDING
ANY OTHER LANGUAGE IN THIS CONTRACT TO THE CONTRARY, PURCHASER’S TOTAL
LIABILITY TO CONTRACTOR SHALL NOT EXCEED THE TOTAL PRICE LESS ANY PAYMENTS
MADE.


 


Article 17.  Excusable Delays


 


(A)                  Any delay or failure in the performance of a Party’s
obligations under this Contract (other than payment obligations) shall be
excused, and such Party will not be liable for, or be in default for, such
delay or non-performance, if the cause of the delay or non-performance is, in
whole or in part, beyond such Party’s reasonable control and without the
negligence of such Party (or its Subcontractors at any tier).


 


Purchaser acknowledges that following
the end of an excusable delay event, Contractor shall resume full performance
as soon as commercially practicable after the end of an excusable delay event,
and the schedule of performance shall be deemed modified to reflect such
recommencement of performance. Payments obligations of Purchaser shall be
suspended only for the portion of Contractor’s performance of Work affected by
the excusable delay.


 


(B)                    Excusable delays
shall be conclusively deemed to include, but are not limited to Acts of God or
of the public enemy; acts or omissions of governmental bodies, including the
FCC, in their sovereign capacities or contractual capacities (including the
inability to obtain and/or the suspension, withdrawal, or non-renewal of export
or import licenses required for the performance of the Contract); acts of war
(declared or undeclared), fires, earthquakes, floods, other unusually severe
weather conditions such as hurricanes, tornadoes and typhoons, epidemics,
quarantine restrictions, strikes, component or parts alerts, labor and other industrial disputes,
terrorist acts and freight embargoes sabotage, riots, theft; introduction of
malicious code; failures or interruptions in essential services or equipment
(e.g., electrical power, telecommunications, fuels, water); embargoes and other
transportation failures.


 


(C)                    The Party whose
performance is delayed under Section 17(A) shall give notice in
writing to the other Party within seven (7) Business Days after an
excusable delay shall have occurred or such notifying Party knows of an
excusable delay, whichever is later. 
Notwithstanding the foregoing, a Party’s failure to provide such notice
shall not prevent such an event from qualifying as an excusable delay, except
to the extent the failure to so notify prejudices the other Party’s ability to
mitigate the impact of the delay or non performance.  Such notice shall also be given at the
termination of the excusable delay. The delivery requirements shall only be
extended, upon mutual agreement of the Parties, by such period of time as is
justified by the evidence forwarded in the notice, but in any event not less
than one (1) Day for one (1) Day of excusable delay.


 


33
















 


(D)                   Should excusable delays total,
or be likely to total, six (6) consecutive months or more, Purchaser, at its
option, may terminate this Contract with respect to unlaunched Spacecraft by
written notice to Contractor and the conditions of Article 21 shall apply.
Purchaser’s right to terminate pursuant to this Article 17(D) shall not apply
to the extent that excusable delays do not affect Contractor’s ability to
perform (i.e., such excusable
delays affect Purchaser only).


 


Article 18. 
Liquidated Damages for Late Delivery / Early Delivery Incentives


 


18.1               Liquidated Damages for Late Delivery


 


(A)                  Contractor
understands that delays in Delivery of Satellites required herein may cause
Purchaser to incur additional cost, loss of revenues and other damages, which
damages are difficult to estimate but the Parties acknowledge are likely to be
significant.  Accordingly, the Parties
agree to fixed and liquidated damages for late Delivery of Satellites which
damages are intended to be compensatory, not a penalty and are in lieu of
actual damages incurred by the Purchaser.


 


(B)                      The
Required Delivery Dates for Spacecraft under this Contract are set forth below
by the following spacecraft groups :


 




	
  Satellites Completed PSR

  	
   

  	
  Date of
  PSR

  (Regular)

  
	
  TOTAL: 7 Satellites

  (FM 2,3,4,5,6,7,8)

  	
   

  	
  March
  27, 2010

  
	
  TOTAL:
  13 Satellites

  (FM 9,10,11,12,13,14)

  	
   

  	
  May
  12, 2010

  
	
  TOTAL:19
  Satellites

  (FM 15,16,17,18,19,20)

  	
   

  	
  June 23, 2010

  
	
  TOTAL:
  24 Satellites

  (FM 21,22,23,24,25)

  	
   

  	
  July
  28, 2010

  
	
  TOTAL: 31 Satellites

  (FM 26,27,28,29,30,31,32)

  	
   

  	
  May
  25, 2012

  
	
  TOTAL: 37 Satellites

  (FM 33,34,35,36,37,38)

  	
   

  	
  Nov 21, 2012

  
	
  TOTAL:
  43 Satellites

  (FM 39,40,41,42,43,44)

  	
   

  	
  May
  20, 2013

  
	
  TOTAL:
  48 Satellites

  (FM 45,46,47,48,PFM1)

  	
   

  	
  Sept
  17, 2013

  






 


For the avoidance of doubt, the Satellite grouping
specified in the above table shall be independent of FM numbers.


 


For
the avoidance of doubt, the PSR ED2 Objective dates as per Early Delivery ED2
Scope of Work shall not be taken into account for the calculation of Liquidated
Damages for Late Delivery as per Article 18.1.


 


The Parties agree that they will negotiate in good faith to create a
Table, to substitute for the above Table, reflecting the actual number of
Spacecraft per Batch (the first Batch to


 


34

















 


include appropriate spare Spacecraft(s)) in alignment with Purchaser’s
selected Launch Services Agreement commitments for the numbers of Spacecraft
per launch.


 


(C)                      In the event Contractor has not
successfully completed PSR for the last Spacecraft of each group as set forth
in the Table in Article 18.1(B) on or before the Two Hundred Forty Second (242nd) Day (Two Hundred Seventy Second (272nd) Day for the first group) after each respective date
set forth in such Table, then for each Day thereafter that the PSR of such
Spacecraft has not been successfully completed beyond such Two Hundred Forty
Second (242nd) Days period (Two Hundred Seventy Second
(272nd) Days period for the first group) until
completion of the PSR for the last Spacecraft of each group, Contractor agrees
to pay Purchaser, as liquidated damages, the following amount :


 


	
  Maximum liquidated

  damages per Spacecraft

  	
   

  	
  Regular Delivery

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Phase 2 — First Batch Maximum liquidated damages per Spacecraft
  per Day

  	
   

  	
  [*] Euros

  	
   

  
	
  Phase 2 — First Batch  Maximum aggregate
  liquidated damages per Spacecraft

  	
   

  	
  [*] Euros

  	
   

  
	
  Phase 2 — other Batches  Maximum
  liquidated damages per Spacecraft per Day

  	
   

  	
  [*]
  Euros

  	
   

  
	
  Phase 2 — other Batches  Maximum
  aggregate liquidated damages per Spacecraft

  	
   

  	
  [*] Euros

  	
   

  
	
  Phase 3 — all Batches  Maximum
  liquidated damages per Spacecraft and per Day

  	
   

  	
  [*]
  Euros

  	
   

  
	
  Phase 3 — all Batches  Maximum
  aggregate liquidated damages per Spacecraft

  	
   

  	
  [*] Euros

  	
   

  
	
  TOTAL

  	
   

  	
  [*] Euros

  	
   

  



 


For
the sake of clarification, the liquidated damages to be paid for a group shall
be calculated by multiplying the appropriate amount set forth in the Table
above for liquidated damages per Spacecraft per Day, times the number of
Satellites in the associated Batch (i.e. 6 Satellites), times the number of
Days’ delay after the grace period as set forth above.


 


35

















 


In the event of occurrence of an unforeseen technical event which is
demonstrated by Contractor to be the cause of delays on subsequent Spacecraft
deliveries, Contractor and Purchaser shall endeavour, in good faith, to define
the best solution allowing to minimize the impacts of Spacecraft delivery for
Purchaser and the cumulative amount of liquidated damages for Contractor.


 


The maximum payment to Purchaser for liquidated damages under this Article
18.1 for each Satellite shall be limited as defined in the Table above. The
maximum overall aggregate payment to Purchaser for liquidated damages under
this Article 18.1 shall be limited as defined in the Table above.


 


(D)                     Payment
of liquidated damages due to Purchaser shall be made within thirty (30) Days
after receipt of an emailed invoice by Contractor from Purchaser.


 


(E)                       Delays
in delivery shall be excused and the delivery date(s) shall be extended, as
appropriate, to reflect the
following conditions :


 


(i)                           if delay in PSR is due to any cause
referred to in Article 17 ; or


 


(ii)                        in the event the TRB of the PFM is not
successfully completed, then as a result thereof Contractor shall not be liable
for liquidated damages for each Spacecraft for which PSR has been successfully
completed prior to the time of such TRB completion ; or


 


(iii)                     the execution of a Stop Work pursuant to Article 22
which results in an extension of the Delivery Schedule ; or


 


(iv)                    if the delay is due to a cause or causes attributable
to the Purchaser ; or


 


(v)                       if Purchaser elects to store a Spacecraft
as set forth in Article 29 which election was not based on Contractor’s delay ;
or


 


(vi)                    if a concurrent
delay exists which prevents Purchaser from commencing launch of the Satellites
that are independent of Contractor’s obligation pursuant to this Contract (i.e.
the launch is delayed for reasons not attributable to the Satellites).


 


(F)                       The liquidated damages set forth herein
reflect the mutual agreement of the Parties as fair and reasonable compensation
for a delay in Delivery.


 


18.2               Early Delivery Incentives


 


In the frame of implementation of the Early Delivery
ED2 Scope of Work, Purchaser and Contractor agree that, in case schedule saving
is totally or partially achieved, Early Delivery Incentives shall be paid by
Purchaser to Contractor according to the following process :


 


36

















 


For each Batch, the Contractor shall be entitled to
earn [*]% of the Early Delivery Incentives based on PSR ED2 Schedule Saving, as
applicable, and [*]% of the Early Delivery Incentives based on Launch ED2
Schedule Saving.


 


The amount of Early Delivery Incentives payable to
the Contractor shall be calculated on a Prorata Temporis basis taking into
account the actual number of Days of PSR ED2 Schedule Saving, and
Launch ED2 Schedule Saving divided by the PSR Schedule Saving Days for [*]%
Incentives as identified in the Table below for each Batch.


 


This
Early Delivery Incentives amount shall be paid within thirty (30) Days after
receipt by the Purchaser of the corresponding invoice from the Contractor.


 


The amount of PSR ED2 Early Delivery Incentives to be
paid by the Purchaser shall not exceed [*]Euro ([*] Euro) per Batch.


 


The amount of Launch ED2 Early Delivery Incentives to
be paid by the Purchaser shall not exceed[*]Euro ([*] Euro) per Batch.


 


Table PSR ED2 Early Delivery
Incentives


 


	
   

  	
   

  	
  Required Delivery

  Dates for Regular

  Schedule as per

  Article 18.1 (B)

  	
   

  	
  PSR ED2

  Objective Dates

  	
   

  	
  PSR Schedule

  Saving Days for

  [*]% Incentives

  	
   

  	
  Maximum

  Incentives amount

  (in Euro)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Batch 1 FM 2 to
  FM7*

  	
   

  	
  March 14, 2010

  	
   

  	
  Feb 2, 2010

  	
   

  	
  40

  	
   

  	
  [*]

  	
   

  
	
  Batch 2 FM 8 to
  FM13*

  	
   

  	
  May 5, 2010

  	
   

  	
  March 28, 2010

  	
   

  	
  38

  	
   

  	
  [*]

  	
   

  
	
  Batch 3 FM 14 to
  FM19*

  	
   

  	
  June 16, 2010

  	
   

  	
  May 9, 2010

  	
   

  	
  38

  	
   

  	
  [*]

  	
   

  
	
  Batch 4 FM 20 to
  FM 25*

  	
   

  	
  July 28, 2010

  	
   

  	
  June 30, 2010

  	
   

  	
  28

  	
   

  	
  [*]

  	
   

  



 






(*)
For the avoidance of doubt a Batch shall be comprised of six (6) Spacecraft
independently of FM numbers specified in the above table.


 


37

















 


Table Launch ED2 Early Delivery
Incentives


 


	
   

  	
   

  	
  Nominal

  Scheduled Launch

  Dates

  	
   

  	
  Launch ED2

  Objective Dates

  	
   

  	
  Launch Schedule

  Saving Days

  for [*]%

  Incentives

  	
   

  	
  Maximum

  Incentives amount

  (in Euro)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Batch 1 FM 2 to
  FM7*

  	
   

  	
  May 23, 2010

  	
   

  	
  April 13, 2010

  	
   

  	
  40

  	
   

  	
  [*]

  	
   

  
	
  Batch 2 FM 8 to
  FM13*

  	
   

  	
  Aug 21, 2010

  	
   

  	
  July 12, 2010

  	
   

  	
  40

  	
   

  	
  [*]

  	
   

  
	
  Batch 3 FM 14 to
  FM19*

  	
   

  	
  Oct 21, 2010

  	
   

  	
  Sept 11, 2010

  	
   

  	
  40

  	
   

  	
  [*]

  	
   

  
	
  Batch 4 FM 20 to
  FM 25*

  	
   

  	
  Dec 21, 2010

  	
   

  	
  Nov 11, 2010

  	
   

  	
  40

  	
   

  	
  [*]

  	
   

  



 






(*)
For the avoidance of doubt a Batch shall be comprised of six (6) Spacecraft
independently of FM numbers specified in the above table.


 


Article 19. 
Request For Deviation (RFD)/Request For Waivers (RFW)


and Changes


 


(A)                    Should Contractor desire to
deviate from the requirements of a specific item of the Work, it shall submit
to Purchaser an RFD/RFW, as set forth in section 2.9.2 of Exhibit A.


 


Contractor shall submit RFD/RFWs to the
Purchaser promptly as and when they occur. 
Before Purchaser shall grant a deviation or waiver, it may negotiate in
good faith with Contractor a mutually acceptable consideration therefor.


 


(B)                    Purchaser may from time to
time between the EDC and completion of this Contract, by written change order
issued by Purchaser, make changes within the general scope of this Contract
regarding the Spacecraft or DSSs, the services or in any drawings, designs,
specifications, methods of shipment or packing, quantities of items, places of
delivery, additional Work, or the omission of Work. Procedures for implementing
such changes may be similar to RFD/RFWs submitted by Contractor pursuant to Article
19(A), with the Parties negotiating the terms of the change order, including
the price therefor, before the change order becomes effective, or Purchaser may
issue the change order without such negotiation, as set forth in Article 19(C).


 


(C)                    If any change order causes
an increase or decrease in the costs of, or the time required for, Contractor’s
obligations under this Contract, and the Parties do not negotiate such terms
before the change order becomes effective, in accordance with Article 19(B), an
equitable adjustment in the price or Delivery Schedule or both shall thereafter
be negotiated by the Parties and this Contract shall be modified in writing
accordingly provided that Contractor shall begin the work related to the change
if and when Contractor has received from Purchaser a financial commitment
acceptable to Contractor to begin such work. Any claim for adjustment under
this Article shall be deemed waived unless asserted in writing (with the amount
of the claim) within forty-five (45) Days from the date of receipt by
Contractor of the change order.


 


38

















 


Article 20. 
Termination for Default


 


(A)                    Purchaser may, by written notice to
Contractor, issue a written notice of Default (the “Default Notice”) to
Contractor, if :


 


(i)                           there is a material breach by Contractor
in the technical compliance during the PFM Payload assembly, integration and
test, in accordance with the Contract ; or


 


(ii)                        there is a material breach by Contractor
in the technical compliance during the PFM Spacecraft assembly, integration and
test, in accordance with the Contract ; or


 


(iii)                     as to each PSR date set forth in Article 18.1(B),
Contractor fails to satisfactorily complete the required PSR twelve (12) months
plus 182 Days after such date for the last Satellite of the first Batch and
nine (9) months plus 182 Days after such date for the last Satellite of the
subsequent Batches.


 


After Purchaser issues a
Default Notice in connection with any of the circumstances in Article 20(A)(i) or
(ii), Contractor shall within ninety (90) Days of such notice submit to
Purchaser a plan (“Plan”) for remedying such Default. If the Plan demonstrates
to the mutual agreement of the Parties that the PSR for the last Satellite of
the first Batch of Satellites to be launched will be completed within
the time specified in Article 18.1(B) plus twelve (12) months plus 182 Days,
then such Plan shall be implemented by Contractor and the Delivery Schedule
shall be adjusted as the Parties shall mutually agree. Contractor may also suggest a Plan that
does not result in the PSR for the last Satellite of the first Batch being
completed within the time specified in Article 18.1(B) plus twelve (12) months
plus 182 Days, provided that Purchaser shall in its sole discretion either
accept or reject such a Plan by written notice sent to Contractor within ten (10)
Business Days. In case of rejection, Purchaser may terminate the Contract by
written notice of termination as set forth in Article 20(B).


 


(B)                      If
Purchaser gives Contractor a Default Notice and Contractor fails to respond to
within the time period (if any) specified above in Article 20(A), Purchaser may
terminate this Contract upon notice (the “Termination Notice”) to Contractor
and without further period for cure.


 


In the event of a termination pursuant to this Article 20(B), then, on
demand from Purchaser, Contractor will refund all payments made by Purchaser
less any amounts due under Article 18.1. Except as provided in Article 9(C), no
refund shall be made with respect to Spacecraft already launched at the time of
termination and for Spacecraft or DSSs for which Final Acceptance has occurred
at the time of termination.  Contractor
shall make this refund within thirty (30) Days of receipt of Purchaser’s
written notice of termination of this Contract. 
In the event that Purchaser demands the refund as described above, then
such refund shall be Purchaser’s sole and exclusive remedy for such
termination.


 


39

















 


Contractor shall keep title and
ownership to all terminated WIP. Purchaser shall take all reasonable necessary
action for the protection and preservation of the Work in possession of
Purchaser in which Contractor has an interest under this Contract, and
Purchaser shall deliver to Contractor such work in its possession at Contractor’s
expense.


 


(C)                      If, after notice of termination under the
provisions of this Article, it is determined that Contractor was not in default
under the provisions of this Article or that the delay was excusable under the
provisions of Article 17, the rights and obligations of the Parties shall be
the same as if notice of termination had been issued pursuant to Article 21.


 


(D)                     So there is no misunderstanding,
it is agreed that Purchaser shall not be entitled to terminate the Contract for
default with respect to any Deliverable Item after delivery of such Deliverable
Item. In addition, termination of the Contract shall not affect Contractor’s
obligations as set forth in the Contract with respect to Spacecraft and other
Deliverable Items already delivered.


 


Article 21.  Termination for Convenience


 


(A)                  Purchaser, by written notice
to Contractor to be effective six (6) months following the date of such notice,
may terminate this Contract in whole or in part for its convenience in
accordance with the terms of this Article 21. In such case, Contractor shall
immediately stop Work as directed in the termination notice and make its
reasonable best efforts to mitigate costs.


 


(B)                      In case of termination for convenience,
Contractor shall be entitled to be paid the lesser of (i) all actual costs,
direct and indirect, incurred by Contractor (Value Added Tax payable by Contractor on such costs as a result of such termination
shall be documented to Purchaser, added to such costs and paid by Purchaser) for all Work performed plus actual
termination costs incurred by Contractor and its Subcontractors and to receive,
in addition, an amount representing [*] profit, before taxes, on such costs
less amounts previously paid by Purchaser to Contractor pursuant to this
Contract or (ii) the maximum aggregate payments to be made as set forth in Exhibit
F for the two (2) quarters following the date of notice as set forth in Article
21(A). The costs will include the impact (either gain or loss) of cancellation
of hedging in place at the time of termination with respect to the portion of
the Total Price referred to in Article 7(C) for which corresponding payments
have not been received from Purchaser. A claim for such costs shall be
submitted by Contractor to Purchaser within sixty (60) Days from the date of
notice of termination. The Parties shall agree upon the final termination
charges to be paid to Contractor within thirty (30) Days after the date of
submission by Contractor of its claim.


 


(C)                    Purchaser shall pay
Contractor the termination charges within thirty (30) Days following the date
of receipt of an invoice from Contractor. Final payment shall be the amount of
the total termination charges less amounts previously paid by Purchaser to
Contractor pursuant to this Contract.  In
the event the amount of these credits exceeds the amount of the total
termination charges, Contractor will refund the excess to Purchaser within
thirty (30) Days following the date of receipt of an invoice from Purchaser.


 


40

















 


Subject
to the prior approval of Purchaser and subject to restrictions that may be imposed under
applicable Governmental authorizations, title to all WIP shall
transfer to Purchaser after payment. The license granted to Purchaser under Article
12 shall continue for the period of use of any Deliverable Items not
terminated.


 


If
requested by Purchaser and to the extent reasonably practicable, Contractor
shall use commercially reasonable efforts to re-sell or re-use on other
programs all WIP (or parts thereof) for the benefit of Purchaser.  In such case, the fair market value of such
WIP that Contractor re-uses or re-sells, as negotiated in good faith by the
Parties, less the reasonable and demonstrable costs of storage and the
reasonable costs incurred by Contractor for reusing and/or reselling such
items, shall be deducted from the termination charges or added to the
termination credit.


 


(D)                   Notwithstanding
the provisions of this Article 21, Purchaser shall not be entitled to terminate
the Contract for convenience with respect to a Spacecraft after its Intentional
Ignition.


 


Article 22.  Stop Work


 


(A)                  Stop Work by Purchaser


 


(i)                         Purchaser may, at any time, by written
notice to Contractor (“the Stop Work Order”), direct Contractor to suspend
performance of the Work for a maximum cumulative duration of six (6) ( months
and with a maximum number of suspensions of two (2). Notwithstanding the foregoing,
the Parties agree that from EDC2 and going forward, only one (1) suspension is
allowed for a maximum duration of two (2) months.  Said Stop Work Order shall specify the date
of suspension and the estimated duration of the suspension. Upon receiving any
such Stop Work Order, Contractor shall promptly suspend further performance of
the Work to the extent specified, and during the period of such suspension
shall properly care for and protect all WIP and materials, supplies, and
equipment Contractor has on hand for performance of the Work.


 


(ii)                      Purchaser may,
at any time during the stop Work, either (a) direct Contractor to resume
performance of the Work by written notice to Contractor, and Contractor shall
resume diligent performance of the Work, provided that (x) the Delivery
Schedule is adjusted to reflect the stop Work and the time required by
Contractor to recommence performance, (y) other affected provisions of the
Contract shall be adjusted, and (z) Contractor is compensated for its costs as
defined in Article 22(A)(iii) below; or (b) terminate the Contract pursuant to Article
21, in which case the costs incurred by Contractor and its Subcontractors as a
result of the stop Work as defined in Article 22(A)(iii) shall be added to the
termination charges to be paid pursuant to Article 21.


 


(iii)                   Contractor
shall be compensated for any additional, direct, out-of-pocket costs reasonably
incurred by Contractor or the Subcontractors as a result of such suspension and
resumption of Work. Contractor shall invoice Purchaser for such costs, and
Purchaser


 


41

















 


shall
pay such invoice within thirty (30) Days from the date of invoice. Invoices
will not be issued more frequently than one (1) per month during a stop Work.


 


(B)                    Stop Work by Contractor in
relation with Phase 1 and 2 activities.


 


(i)                         In the event
Purchaser fails to make any payment in due time as required pursuant to this
Contract, Contractor shall notify Purchaser in writing of such failure. If such
failure is not cured by Purchaser within thirty (30) Days after the date of
such notification made by Contractor, Contractor shall be entitled to
immediately stop the Work under the Contract.


 


If Purchaser cures the payment failure on or before thirty (30) Days
from the date Contractor has stopped the Work as defined above, Contractor
shall resume any Work suspended as reasonably and promptly as possible provided
that (a) Purchaser has paid to Contractor all costs and expenses incurred as a
result of the stop Work hereunder and (b) the schedule of the Contract shall be
adjusted (provided such schedule adjustment shall not be less than one Day for
each Day of Work stoppage).


 


(ii)                      If Purchaser
fails to cure the payment failure within thirty (30) Days from the date
Contractor has stopped the Work as defined above, Contractor shall be entitled
to immediately terminate the Contract by written notice sent to Purchaser and
the provisions of Article 22(B)(iv) shall apply.


 


(iii)                   In the event Purchaser fails to perform any
material obligations (other than those expressed in Article 22(B)(i) and Article
22(B)(ii)), Contractor shall notify Purchaser in writing of such failure. If
such failure is not cured by Purchaser within thirty (30) Days after the date
of such notification made by Contractor, Contractor shall be entitled to
immediately stop the Work under this Contract.


 


If Purchaser fails to cure the material breach within thirty (30) Days
from the date Contractor has stopped the Work as defined above, Contractor
shall be entitled to immediately terminate the Contract by written notice sent
to Purchaser and the provisions of Article 22(B)(iv) shall apply.


 


If Purchaser cures the material breach on or before thirty (30) Days
from the date Contractor has stopped the Work as defined above, Contractor
shall resume any Work suspended as reasonably and promptly as possible provided
that (a) Purchaser has paid to Contractor all costs and expenses incurred as a
result of the stop Work hereunder and (b) the schedule of the Contract shall be
adjusted (provided such schedule adjustment shall not be less than one Day for
each Day of Work stoppage).


 


(iv)                    In the event of termination of the
Contract by Contractor pursuant to this Article 22(B), Purchaser shall be
liable to Contractor for the charges payable pursuant to Article 21(B) which
shall include all costs and expenses incurred as a result of the stop Work
hereunder, but in no event to exceed the maximum aggregate payments to be made
as set forth in Exhibit F for two (2) quarters following the date of
termination notice.


 


42
















 


(v)                       In the event of a
bankruptcy filing by or against Purchaser, and the occurrence of a
post-bankruptcy default by Purchaser including, but not limited to, a default
under Article 34(F), Purchaser consents to a modification of the stays of
proceedings to permit the Contractor to exercise such rights and remedies as
may be available to it under the Contract or applicable law, including, but not
limited to, the right to suspend performance, terminate the Contract and
exercise rights under other agreements with the Purchaser.


 


Further, Purchaser
consents that any preliminary hearing on a request under U.S. Bankruptcy Code
section 362(d) (or under any successor statute or rule) by Contractor for a
modification of the stays of proceedings (a “Modification of the Stays Motion”)
shall be combined with a final hearing so that such hearing may be concluded
not less than thirty (30) days after the filing of the Contractors’
Modification of the Stays Motion.


 


Purchaser
acknowledges that the provisions of this Article 22(b)(v) are critical elements
of the transaction to Contractor. The Parties have consulted legal counsel
experienced in such issues, and agree that a provision of this type is
beneficial in these circumstances.


 


(C)                   Stop Work by Contractor in relation with Phase 3
activities.


 


(i)                         In the event Purchaser fails to
make any payment in relation with Phase 3 Spacecraft in due time as required
pursuant to this Contract, Contractor shall notify Purchaser in writing of such
failure. If such failure is not cured by Purchaser within ten (10) Days after
the date of such notification made by Contractor, Contractor shall be entitled
to draw immediately the unpaid amount from the Escrow Account, provided such
Escrow Account is the implementation for the Security Instrument as set forth
in Article 26 (D).


 


In such case, Purchaser
shall replenish the Escrow Account so that the amount of such  Escrow
Account shall equal the amounts (“Security Amounts”)  as identified and set forth in the security
amounts column in Exhibit F. In the event Purchaser fails to replenish the
Escrow Account within thirty (30) Days from the date of notification of the
failure made by Contractor as defined above, Contractor shall be entitled to
immediately stop the Work under this Contract.


 


If Purchaser fails to
replenish the Escrow Account within thirty (30) Days from the date Contractor
has stopped the Work as defined above, Contractor shall be entitled to
immediately terminate the Contract by written notice sent to Purchaser and the
provisions of Article 22(B)(iv) shall apply.


 


If Purchaser replenishes
the Escrow Account on or before thirty (30) Days from the date Contractor has
stopped the Work as defined above, Contractor shall resume any Work suspended
as reasonably and promptly as possible provided that (a) Purchaser has paid to
Contractor all costs and expenses incurred as a result of the stop Work
hereunder and (b) the schedule of the Contract shall be adjusted (provided such
schedule  adjustment shall not be less than one Day for each Day of Work
stoppage).


 


43

















 


(ii)                      In the event Purchaser fails at
any time during the performance of the Contract to maintain the required
Security Amounts for the Escrow Account as set forth in Exhibit (F).  Contractor shall notify Purchaser in writing
of such failure. If such failure is not cured by Purchaser within thirty (30)
Days after the date of such notification made by Contractor, Contractor shall
be entitled to immediately stop the Work under this Contract.


 


If Purchaser fails to
replenish the Escrow Account within thirty (30) Days from the date Contractor
has stopped the Work as defined above, Contractor shall be entitled to
immediately terminate the Contract by written notice sent to Purchaser and the
provisions of Article 22(C)(iv) shall apply.


 


If Purchaser replenishes
the Escrow Account on or before thirty (30) Days from the date Contractor has
stopped the Work as defined above, Contractor shall resume any Work suspended
as reasonably and promptly as possible provided that (a) Purchaser has paid to
Contractor all costs and expenses incurred as a result of the stop Work
hereunder and (b) the schedule of the Contract shall be adjusted (provided such
schedule adjustment shall not be less than one Day for each Day of Work
stoppage).


 


Should the Parties agree to enter
in a Security Instrument other than the Escrow Account, then this Article 22 (C)
shall be adjusted in accordance with such agreed to Security Instrument.


 


(iii)                   In the event Purchaser fails to
perform any material obligations (other than those expressed in Article 22(C)(i)
and Article 22(C)(ii)), Contractor shall notify Purchaser in writing of such
failure. If such failure is not cured by Purchaser within thirty (30) Days
after the date of such notification made by Contractor, Contractor shall be
entitled to immediately stop the Work under this Contract.


 


If Purchaser fails to cure
the material breach within thirty (30) Days from the date Contractor has
stopped the Work as defined above, Contractor shall be entitled to immediately
terminate the Contract by written notice sent to Purchaser and the provisions
of Article 22(C)(iv) shall apply.


 


If Purchaser cures the
material breach on or before thirty (30) Days from the date Contractor has
stopped the Work as defined above, Contractor shall resume any Work suspended
as reasonably and promptly as possible provided that (a) Purchaser has paid to
Contractor all costs and expenses incurred as a result of the stop Work
hereunder and (b) the schedule of the Contract shall be adjusted (provided such
schedule adjustment shall not be less than one Day for each Day of Work
stoppage).


 


(iv)                    In the event of termination of
the Contract by Contractor pursuant to this Article 22(C), Purchaser shall be
liable to Contractor for the charges payable pursuant to Article 21(B) which
shall include  all costs and expenses incurred as a result of the stop
Work hereunder, but in no event to exceed the maximum aggregate payments to be
made as set forth in Exhibit F for two (2) quarters following the date of
termination notice.


 


44

















 


Contractor shall be entitled to draw immediately
such amounts under the Escrow Account within thirty (30) Days after the date of
termination. In case the amounts drawn under the Escrow Account do not cover
the full amount due and payable to Contractor, Purchaser shall pay the balance
to Contractor.


 


(v)                         In the
event of a bankruptcy filing by or against Purchaser, and the occurrence of a
post-bankruptcy default by Purchaser including, but not limited to, a default
under Article 34(F), Purchaser consents to a modification of the stays of
proceedings to permit the Contractor to exercise such rights and remedies as
may be available to it under the Contract or applicable law, including, but not
limited to, the right to suspend performance, terminate the Contract and
exercise rights under other agreements with the Purchaser.


 


Further, Purchaser consents that any preliminary
hearing on a request under U.S. Bankruptcy Code section 362(d) (or under any
successor statute or rule) by Contractor for a modification of the stays of
proceedings (a “Modification of the Stays Motion”) shall be combined with a
final hearing so that such hearing may be concluded not less than thirty (30)
days after the filing of the Contractors’ Modification of the Stays Motion.


 


Purchaser acknowledges that the provisions of this Article
22(C)(v) are critical elements of the transaction to Contractor. The Parties
have consulted legal counsel experienced in such issues, and agree that a
provision of this type is beneficial in these circumstances.


 


Article 23. 
Arbitration


 


(A)                  Any dispute or disagreement
arising between the Parties in connection with any interpretation of any
provision of the Contract, or the compliance or non-compliance therewith, or
the validity or enforceability thereof, or any other dispute under any Article hereof
which is not settled to the mutual satisfaction of the Parties within thirty
(30) Days (or such longer period as may be mutually agreed) from the date that
either Party informs the other in writing that such dispute or disagreement
exists, shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules and the Supplementary
Procedures for Large, Complex Disputes in effect on the date that such notice
is given, except as otherwise specified herein.


 


(B)                    The Party which demands arbitration of
the controversy shall in writing specify the matter to be submitted to arbitration,
and at the same time, choose and nominate an arbitrator; thereupon, within
fifteen (15) Days after receipt of such written notice, the other Party shall
in writing choose and nominate a second arbitrator.


 


The two arbitrators so chosen shall forthwith
select a third arbitrator, giving written notice to both Parties of the choice
so made and fixing a time and place in New York City, at which both Parties may
appear and be heard with respect to such controversy.  In case the two arbitrators shall fail to
agree upon a third arbitrator within a period of seven (7) Days, or if for any
other reason there shall be a lapse in the naming of an arbitrator or


 


45

















 


arbitrators, or in the filling of a
vacancy, or in the failure or refusal of any arbitrator or arbitrators to
attend or fulfill his or their duties, then upon application by either Party to
the controversy, arbitrators shall be named by the American Arbitration
Association in accordance with its Arbitration Rules.


 


The arbitrators shall control discovery
as they shall determine is appropriate in the circumstances, taking into
account the needs of the Parties and the desirability of having the discovery
take place in an expeditious and cost-effective manner. Any discovery shall be
limited to information directly relevant to the controversy or claim in
arbitration and shall be concluded within ninety (90) Days after the
arbitrators are appointed, unless good cause for an extension of such deadline
is shown.


 


(C)                    The arbitrators shall not
alter or modify the terms and conditions of this Contract but shall consider
the pertinent facts and circumstances and be guided by the terms and conditions
of this Contract.  If a solution is not
found in the terms and conditions of this Contract, the arbitrators shall be
guided by the substantive laws of the State of New York, excluding all conflict
of law rules.  The arbitration award made
shall be final and binding upon the Parties, their successors and assignees,
and judgment may be entered thereon, upon the application of either Party, by
any court having jurisdiction. Each Party shall bear the cost of preparing and
presenting its case including its own attorneys’ fees; and the cost of
arbitration, including the fees and expenses of the arbitrator or arbitrators,
will be shared equally by the Parties.


 


(D)                   The relief that may be
awarded by the arbitrators under any arbitration arising from this Contract may
not exceed actual compensatory damages. 
In no event may the arbitrators award punitive damages or otherwise
disregard the limitations of liability set forth in this Contract.


 


Article 24. 
Warranty


 


(A)                  Contractor warrants that
each Spacecraft shall be free from material defects in materials and
workmanship and will conform to the requirements in Exhibit B. This warranty
shall start upon the date of the Pre-Shipment Review and shall run for a period
of one (1) year, or until Intentional Ignition, whichever is earlier.


 


In case of storage
pursuant to Article 29(A), the warranty will be extended for a period of two (2)
years or up to the Intentional Ignition of the stored Spacecraft, whichever
occurs earlier. After Intentional Ignition, the obligations of Contractor in
case of defects identified on a Spacecraft shall be limited to the performance
of the Anomaly Support.


 


(B)                    Contractor warrants that the
Satellite OBPE Software shall be free from material defects in materials and
workmanship and will conform to the requirements in Exhibit B. This warranty
shall start upon the date of Intentional Ignition of the first successful
launch and shall run for a period of one (1) year. The scope of this warranty
is as set forth in Exhibit A.


 


46

















 


(C)                    Subject to the provisions of
Article 16, Contractor warrants that the DSS shall be free from material
defects in materials and workmanship and will conform to the requirements in Exhibit
E. This warranty shall start upon the date of Final Acceptance thereof and
shall run for a period of two (2) years.


 


(D)                   Without waiver of its right
to terminate this Contract for default, Purchaser shall have the right, at any
time during the period of this warranty and irrespective of prior inspections
or acceptance, to require that any Deliverable Item not conforming to the
material requirements of the Contract by written notice sent to Contractor
(detailing to which extent the Contract requirements are not met) be corrected
or replaced, at Contractor’s expense and option.


 


(E)                     The remedy under this Article
24 shall not apply, as far as the DSS and the Satellite OBPE Software are
concerned, if repair or parts replacement is required because of accident,
unusual physical or electrical stress, negligence, misuse, failure of
environmental control prescribed in operations and maintenance manuals, repair
or alterations by Purchaser, its officers, directors, employees, consultants,
representatives or agents, or causes other than ordinary use. Furthermore, the warranty is contingent
upon Contractor being given access to delivered Deliverable Items in order to
effect any correction or replacement.


 


(F)                     In addition to the rights,
duties and obligations of Contractor under other provisions of this Contract,
Contractor shall regularly and diligently review and assess the generic design
of each Spacecraft and related equipment, and the performance data available
from any Spacecraft which has been launched or is to be launched and the
performance of any equipment (other than Spacecraft) supplied, operated or
installed or to be so supplied, operated or installed by Contractor up to the
time of launch for a Spacecraft.  If such
review and assessment shows that a material defect exists which affects
adversely or is reasonably likely to affect adversely the operation or performance
of a Spacecraft or other equipment, Contractor shall notify Purchaser of any
changes required thereto and, upon the written agreement of Purchaser, take
prompt and appropriate measures at Contractor’s sole cost to correct a
Spacecraft and other equipment before launch, so as to eliminate the defect
therefrom.


 


Purchaser shall provide to Contractor for the purpose
of the investigation all available data and information related to the
operation of the Spacecraft in orbit. In the event that corrective
measures taken pursuant to this Article 24 cause a delay, such delay shall be
treated like an excusable delay and there shall be an equitable adjustment to
the schedule and other terms for performance for the affected Work.


 


(G)                    Purchaser authorizes
Contractor to disclose material deficiencies about Spacecraft to third parties
(customers, consultants and insurers) if problems are discovered either during
production or on orbit and if such problems are likely to affect other
spacecrafts. This disclosure is subject to US export control restrictions and
execution of a


 


47

















 


confidentiality agreement
and shall not identify Globalstar System, unless Purchaser otherwise agrees.


 


(H)                   EXCEPT AS IS OTHERWISE
EXPRESSLY PROVIDED IN THIS CONTRACT, NO OTHER WARRANTIES, WHETHER STATUTORY,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE, SHALL APPLY TO THE GOODS AND SERVICES
HEREUNDER AND THE REMEDIES PROVIDED HEREIN ARE THE SOLE REMEDIES FOR FAILURE BY
CONTRACTOR TO FURNISH WORK THAT IS FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP
AND CONFORMANCE WITH REQUIREMENTS AS SET FORTH IN THIS ARTICLE 24. IN NO EVENT
SHALL CONTRACTOR BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES. ALL OTHER WARRANTIES OR CONDITIONS IMPLIED BY ANY OTHER
STATUTORY ENACTMENT OR RULE OF LAW WHATSOEVER ARE EXPRESSLY EXCLUDED AND
DISCLAIMED.


 


Article 25.  Communication and Authority


 


(A)                    [*] is assigned as Purchaser’s Program Manager with authority
to issue technical direction within the scope of this Contract.  [*] is assigned as Contractor’s Program
Manager with authority to accept such direction.  Notwithstanding Article 25(A), the foregoing
Program Managers are authorized (i) to initial the Exhibits and any
modifications thereto (except Exhibit F), and (ii) to execute the waivers of
technical compliance with the specifications in the Exhibits.


 


(B)                    All contractual
correspondence to Purchaser will be addressed to (with copy to the Program
Manager) :


 


[*]


Globalstar,
Inc.


461
South Milpitas Blvd.


Milpitas,
California 95035, U.S.A.


Email: [*]


 


48

















 


All technical correspondence to Purchaser
will be addressed to :


 


[*]


Globalstar, Inc.


461 South
Milpitas Blvd.


Milpitas, California 95035, U.S.A.


Email: [*]


 


All
contractual correspondence to Contractor will be addressed to (with copy to the
Program Manager) :


 


[*]


Thales Alenia Space France


100, Boulevard du midi - B.P 99


06156 Cannes la Bocca Cedex — France


Email: [*]


 


All
technical correspondence to Contractor will be addressed to :


 


[*]


Thales Alenia Space France


100 Boulevard du midi - B.P 99


06156 Cannes la Bocca Cedex — France


Email: [*]


 


(C)                    In a time critical
situation, such as in the case of failures or suspected failures of
transponders or other operational or technical matters requiring immediate
attention, notice may be given by telephone. Any notice given verbally will be
confirmed in writing as soon as practicable thereafter in accordance with Article
25(D).


 


(D)                   Except as provided in Article
25(C), all notices, demands, reports, orders and requests hereunder by one
Party to the other shall be in writing and deemed to be duly given on the same
Business Day if sent by electronic means (i.e.,
electronic mail) or delivered by hand during the receiving Party’s regular
business hours, or on the date of actual receipt if sent by pre-paid overnight,
registered or certified mail.


 


(E)                     The Parties agree to
cooperate in implementing the use of electronic signatures, provided that such
use is consistent with applicable law.


 


49

















 


Article 26.  Spacecraft for Phase 3


 


(A)                  Phase 3 Delivery - Advanced Schedule of six (6) Spacecraft.


 


Upon EDC2, the Contractor shall proceed with
the procurement of Long Lead Items (LLI) for advancement of six (6) Spacecraft
under Phase 3.


 


The Purchaser may notify Contractor in writing
to proceed with the completion of the manufacture and test of the six (6) Spacecraft
(“the Completion Notice”) at any time between May 1st, 2010 (“the Earliest Call-Up Date”) and September 1st 2010 (“the
Latest Call-Up Date”), unless Purchaser elects to postpone the Required
Delivery Dates as set forth in Article
26(C) below. The PSR Date for the sixth (6th) Spacecraft of the Batch shall occur within twenty
(20) months after the date of the Completion Notice.


 


If on the Latest Call-Up Date the Purchaser has
not issued the Completion Notice for the Regular Delivery Schedule as per Article
26 (B) below, and has not elected to postpone the Required Delivery Dates as set forth in Article 26(C) below, then the Contract
shall be deemed terminated by Purchaser for convenience in relation to the six (6)
Spacecraft under Phase 3 and the provisions of Article 21 shall apply, unless
otherwise agreed by the Parties.  In such
case, the payment amount of [*]Euro ([*] Euro) referred to in Article 4 Item
1Bis shall be due in addition to the termination cost referred to in Article 21
of the Contract and payable within 1 week after receipt of the corresponding
invoice.


 


As a condition of Contractor’s acceptance of
the Completion Notice, the Purchaser shall have established the appropriate
Security Instrument as set forth in (D) below.


 


(B)                    Phase 3 Delivery — Regular
Delivery


 


(i) In order to maintain the Regular
Delivery of the seventeen (17) Spacecraft for which LLI have not been ordered
by Contractor, Purchaser shall ensure that the agreed to Security Instrument is
in place on February 1, 2010 as a condition for Contractor’s start of
activities for manufacture and test of such seventeen (17) Spacecraft in
accordance with the Contract, unless Purchaser elects to postpone the Required Delivery Dates as
set forth in Article 26(C) below.


 


If on February 1, 2010 the Purchaser
has not put in place the agreed to Security Instrument as a condition for
Contractor’s start of activities for manufacture and test of the seventeen (17)
Spacecraft in accordance with the Contract and has not elected to postpone the
Required Delivery Dates of the seventeen (17) Spacecraft under Phase 3 as set
forth in Article 26(C) below, then the Contract shall be deemed terminated by
Purchaser for convenience in relation to the seventeen (17) Spacecraft under
Phase 3 and the provisions of Article 21 shall apply.


 


(ii) If by September 1, 2010 the
Purchaser has not issued the Completion Notice as provided for in Article 26(A),
then in order to maintain the Regular Delivery of the six


 


50

















 


(6) Spacecraft of Phase 3 for which LLI have been ordered,
Purchaser shall ensure that the agreed to Security Instrument is in place on September
1, 2010 as a condition for Contractor’s start of activities for manufacture and
test of the six (6) Spacecraft in accordance with the Contract, unless
Purchaser elects to postpone the Required Delivery Dates as
set forth in Article 26(C) below.


 


If by September 1, 2010 the
Purchaser has not issued the Completion Notice as provided for in Article 26
(A), and the Security Instrument in order to maintain the Regular Schedule is
not in place and the Purchaser does not elect to postpone the Required Delivery
Dates as set forth in Article 26 (C) below, then the Contract shall be deemed terminated by Purchaser for convenience in
relation to the six (6) Spacecraft under Phase 3 and the provisions of Article 21
shall apply.  In such case, the payment
amount of [*]Euro ([*] Euro) referred to in Article 4 Item 1Bis shall be due in
addition to the termination cost referred to in Article 21 of the Contract and
payable within 1 week after receipt of the corresponding invoice.


 


(C)                    Phase 3 Delivery - Postponement Option


 


Purchaser may elect to postpone the Required
Delivery Dates for Spacecraft under Phase 3 by Thirteen months (13) months upon
written notice to Contractor to be received on or before the date as follows:


 


(i)                                     No later than February
1, 2010 for the postponement of the Required Delivery Dates of the seventeen
(17) Spacecraft under Phase 3;  and


 


(ii)                                  No later than September 1, 2010 for the
postponement of the Required Delivery Dates of the six (6) Spacecraft under
Phase 3 for which LLI have been      procured.


 


In the event of a thirteen month postponement,
the agreed to Security Instrument shall be in place by March 5, 2011 for the
postponement of 26(C) (i) and by October 1, 2011 for the postponement of 26 (C)
(ii).


 


In the event of the aforementioned
postponement in Article 26(C)(i) or (ii), the price for Spacecraft, Launch Support Services and MOSS under Phase 3
shall be increased as by


 


(a)          [*]percent
([*]%) per quarter:  if the postponements
in both Article 26(C)(i) and (ii) are elected for all twenty-three (23)
Spacecraft under Phase 3;  and


 


(b)         [*]percent
([*]%) per quarter:  if the postponement
in Article 26(C)(i) only is elected for the seventeen (17) Spacecraft under
Phase 3.


 


For the sake of clarification, there will be
no price increase for Spacecraft, Launch Support Services and MOSS under Phase
3 if the Purchaser issues the Completion Notice for the advanced six (6) Spacecraft
under Phase 3 and maintains the Regular Delivery of the remaining seventeen
(17) Spacecraft under Phase 3.


 


51

















 


For a postponement period greater than
thirteen (13) months but not to exceed eighteen (18) months from the Regular
Delivery Schedule (the “Maximum Postponement Period”) (subject to non
obsolescence of parts, materials and qualification processes ), or for
postponement of Spacecraft quantities other than stated above, the Parties shall
negotiate in good faith the appropriate equitable adjustment in price and
schedule.


 


The Parties acknowledge that should Purchaser
elect to postpone the six (6) Spacecraft under 26 (C) (ii), then the 17
Spacecraft under 26 (C) (i) cannot maintain the Regular Delivery Schedule and should the Purchaser elect
to postpone the delivery of the 17 Spacecraft under 26 (C) (i), then the
Postponement Period shall, as a minimum, correspond to the one elected for the
six (6) Spacecraft under 26 (C) (ii).


 


The Security Instrument date for a
postponement period greater than thirteen (13) months shall be calculated based
on March 5, 2011 plus the actual additional postponement period greater than
thirteen (13) months. This calculation shall apply to postponement of Spacecraft
under 26 (C) (i) and/or 26 (C) (ii).


 


However, if the Security Instrument is not in
place for Phase 3 Spacecraft by the required date set forth in 26 (C) corresponding
to the elected postponement period, then the Contract shall be deemed terminated by Purchaser for convenience in
relation to the remaining Spacecraft under Phase 3 and the provisions of Article
21 shall apply.


 


(D)                   Security Instrument for
Phase 3 Delivery


 


As
a condition for Contractor’s performance for Phase 3 delivery in accordance with
either (A), (B) or (C) above, the Parties agree that a certain Security
Instrument in a form and substance to be mutually agreed at least thirty (30)
days prior to the date(s) Purchaser elects to implement regarding the Phase 3
delivery as set forth in each of the above subparagraphs. The need for a
Security Instrument and/or a Security Amount shall take into consideration
Purchaser’s funds available resulting from launch insurance proceeds available
for the funding of Phase 3 delivery. 
Failing such mutual agreement, the Security Instrument, by default,
shall be as follows:  On a quarterly
basis, Purchaser shall deposit into the Escrow Account the Security Amounts as
identified and set forth in Exhibit F.


 


Article 27. 
Licenses for Export and Launch


 


(A)                  This Contract is subject to
all applicable United States laws and regulations relating to the export of
Licensed Items and to all applicable laws and regulations of the country or
countries to which such Licensed Items are exported or are sought to be exported.  Contractor and Purchaser shall fully comply
with all requirements of any Technical Assistance Agreement related to the
substance of this Contract, whether included as an Appendix hereto or not.


 


52
















 


(B)                    Without limiting the scope
of Article 27(A), Contractor shall use its reasonable best efforts to obtain
all approvals and licenses required by the laws and regulations of the country
or countries to which the Licensed Items are exported or are sought to be
exported. Purchaser shall use its reasonable best efforts to obtain all US
government approvals and licenses to export Licensed Items.


 


(C)                    If a government refuses to grant a
required approval or license to export the Licensed Items, or to launch a Spacecraft,
or revokes or suspends an approval or license subsequent to its grant, or
grants a license or approval subject to conditions, then (i) this Contract
shall, nevertheless, remain in full force and effect unless terminated for
convenience pursuant to Article 21, and (ii) the Delivery Schedule shall be
adjusted on a day-for-day basis for each day that Contractor is impacted by
such action or inaction of the United States government.  Such government action or inaction shall not
modify in any way the rights and obligations of the Parties under this Contract
except to relieve Contractor of any obligations which cannot be performed
without such an approval or license.


 


(D)                   The Parties confirm that
their performance of, and obligations under, this Contract is in all matters
subject to the provisions of this Article 27, notwithstanding that (i) other
Articles (including without limitation those paragraphs in Articles 8 and 9)
and Exhibits may not specifically reference Article 27, and (ii) other Articles
and Exhibits may state that they are subject to compliance with other Articles
of this Contract.


 


(E)                     Contractor and Purchaser
shall cooperate in amending as necessary the existing Technical Assistance
Agreement set forth in Appendix 2 and in the establishment of Appendix 3, which
will allow Purchaser to be directly involved in matters related to some or all
Licensed Items.


 


Article 28. 
Spacecraft Storage


 


(A)                  In the event of a delay or
failure to launch which is attributable to Contractor, Contractor, at its
expense, shall provide for all transportation, storage (if needed), testing and
refurbishment and any Work and expense of maintenance to prevent deterioration
of a Spacecraft required before and until such time as a rescheduled launch can
reasonably be effected.


 


(B)                      If Purchaser has not secured a firm
launch commitment for Spacecraft having completed PSR, then Purchaser shall
direct Contractor to store such Spacecraft and the provisions of Article 29(A) and
of the Storage Plan shall apply.


 


(C)                    Title and risk of loss for a
Spacecraft to be stored in accordance with this Article 28 shall remain with,
and the associated cost of insurance shall be borne by Contractor.


 


53

















 


Article 29.  Options


 


(A)                    Option for extended storage


 


(i)                         If, for any
reason other than the fault of Contractor, Purchaser so requests of Contractor,
after successful completion of Pre-Shipment Review, Contractor shall place a
Spacecraft in storage, in accordance with a Storage Plan, for a maximum period
of twelve (12) years. Unless otherwise set forth in the Storage Plan, title and
risk of loss for a Spacecraft in storage in accordance with this Article 29(A)(i)
shall pass to Purchaser in accordance with Article 9. In addition, Purchaser shall
be responsible for all transportation costs in transit, (a) from Contractor’s
facility to storage, (b) if necessary, from the storage site to a refurbishment
site, and (c) if applicable, from the Launch Site to the storage site and
return.  Assuming a storage location
within a 150-mile radius of Contractor’s facility, Contractor shall be
responsible for all transportation costs from the storage site, or the
refurbishment site if applicable, to the Launch Site and for the risk of loss
and the expense of any insurance to cover such risk while in transit.


 


(ii)                    If storage of a Spacecraft
is effected pursuant to Article 29(A), upon the request of Purchaser,
Contractor shall provide periodic testing, necessary equipment, and
environmental maintenance suitable for prevention of deterioration to the
Spacecraft during the period of storage. Unless such environmental services are
provided by Contractor, any deterioration to a Spacecraft while in storage
shall be at Purchaser’s risk and shall be corrected at Purchaser’s expense. If
such services are provided by Contractor, correction of such deterioration
shall be at Contractor’s expense.


 


(iii)                     The price for storage
activities will be negotiated in good faith between the Parties upon request
from Purchaser.


 


(iv)                    If, at any time after
storage effected pursuant to Article 29(A) begins, Purchaser elects to launch a
stored Spacecraft, Contractor shall inspect, test and refurbish as necessary
such Spacecraft to a launch-ready condition and arrange for transit to the Launch
Site as directed by Purchaser.  The price
for such activities will be negotiated in good faith between the Parties.


 


(v)                     If the
Spacecraft is placed in storage pursuant to Article 29(A), then the provisions
of Article 18.1 and Article 20 shall no longer apply with respect to such
Spacecraft.


 


54

















 


(B)                    Additional Spacecraft


 


Purchaser
shall have the option to order from Contractor up to eighteen (18) additional
recurring Spacecraft under the following conditions :


 


(i)                           Each order shall be for a
minimum of six (6) additional Spacecraft.


 


(ii)                          If the order is exercised on
or before July 1, 2008, then the firm fixed price for each additional
Spacecraft shall be [*]  Euros.


 


(iii)                       If the order is exercised on or after July
2, 2008 for delivery of Satellites before December 31, 2013, then the firm
fixed price for each additional Spacecraft shall be [*] Euros.


 


(iv)                      If the order is exercised after July 2,
2008 for delivery after December 31, 2013, then the firm fixed price for each
additional Spacecraft shall be [*] Euros plus a [*]% annual increase for each
year after 2013.


 


(v)                       The Delivery schedule for each additional Spacecraft
ordered on or before April 1, 2013 (under the Regular Delivery) shall be :


 


· the first Spacecraft ordered will be delivered
twenty two (22) months after the date of receipt of the order by Contractor ;
and


 


· the subsequent Spacecraft will be delivered at
a rate of one (1) per month after the first one of that Batch (the minimum size
of the order being of 6 to 8 satellites per Batch).


 


The Delivery schedule for each additional Spacecraft
ordered after April 1, 2013 (under the Regular Delivery) shall be :


 


· the first Spacecraft ordered will be delivered thirty (30) months after
the date of receipt of the order by Contractor ; and


 


· the subsequent Spacecraft will be delivered at a rate of one (1) per month
after the first one of that Batch (the minimum size of the order being of 6 to
8 satellites per Batch).


 


In any case, in case of obsolescence of components,
Contractor reserves the right to renegotiate in good faith with Purchaser the
price and schedule for these additional satellites.


 


55

















 


(C)                    Satellite OBPE Software enhancement


 


Purchaser shall have the option to order from
Contractor OBPE Software enhancement activities to be defined on a case-by-case
basis. The scope and price for such activities will be negotiated in good
faith between the Parties on time and material basis.


 


(D)                   Extended Anomaly Support


 


Purchaser shall have the option to order from
Contractor extended Anomaly Support activities to be defined on a case-by-case
basis. The scope and price for such activities will be negotiated in good
faith between the Parties on time and material basis.


 


Article 30.  Key
Personnel


 


(A)                  At EDC, Contractor shall
identify the Key Personnel for the following positions to perform the services
and staff the Work, working dedicated until successful completion of the Work
performed hereunder (individually a “Key Person” and collectively the “Key
Personnel”).  No person can serve the
role of more than one Key Person.


 




	
  Position

  	
   

  	
  Name

  
	
  Program Manager

  	
   

  	
  [*]

  






 


(B)                    Key Personnel shall not be
removed from performance of the Work under this Contract unless replaced with
personnel of substantially equal qualifications and ability.  Purchaser shall have the right to review the
qualifications of any proposed replacements. 
If Purchaser deems, in its reasonable judgment, the proposed
replacements to be unsuitable, Purchaser may require Contractor to offer
alternative candidates.  Notwithstanding
its role in reviewing Key Personnel and their replacements, Purchaser shall
have no supervisory control over their performance, and nothing in this Article
shall relieve Contractor of any of its obligations under this Contract, or of
its responsibility for any acts or omissions of its personnel.


 


Article 31. 
Indemnification and Insurance


 


(A)                  Contractor shall indemnify
and hold harmless Purchaser, and its subsidiaries and affiliates, and its
subcontractors (if any), their respective officers, employees, agents, servants
and assignees, or any of them (collectively “Purchaser Indemnitees”), from any
direct or indirect loss, damage, liability and expense (including reasonable
attorneys fees), on account of loss or damage to property and injuries,
including death, to all persons, including but not limited to employees or
agents of Contractor, the Subcontractors and the Purchaser Indemnitees, and to
all other persons, arising from any occurrence caused by any negligent act or
omission or willful misconduct of Contractor, the Subcontractors or any of
them.


 


56

















 


At
Contractor’s expense, Contractor shall defend any suits or other proceedings
brought against the Purchaser Indemnitees on account thereof, and shall pay all
expenses and satisfy all judgments which may be incurred by or rendered against
them, or any of them, in connection therewith.


 


Contractor
shall have the right to settle any claim or litigation against which it
indemnifies hereunder. Further, the Purchaser Indemnitees shall provide to
Contractor such reasonable cooperation and assistance as Contractor may request
to perform its obligations hereunder.


 


(B)                      Purchaser shall
indemnify and hold harmless Contractor, and its subsidiaries and affiliates,
its Subcontractors, their respective officers, employees, agents, servants and
assignees, or any of them (collectively “Contractor Indemnitees”), from any
direct or indirect loss, damage (including damage to property and injuries, including
death), liability and expense (including reasonable attorneys fees) incurred by any third party
(including employees or agents of Purchaser and Contractor Indemnitees) and arising from
any occurrence caused by any negligent act or omission or willful misconduct of
Purchaser, its
officers, employees, agents, consultants, servants and assignees.


 


In addition, Purchaser shall waive any claim against
and shall indemnify and hold harmless Contractor Indemnitees from any direct or
indirect loss, damage (including damage to property and injuries, including
death), liability and expense incurred by any third party and arising from use,
operation or performance of the DSSs, the Satellite OBPE Software and any
Spacecraft after Intentional Ignition, including as a result of modification or
improvements made by Purchaser.


 


Purchaser shall, at Purchaser’s expense,
defend any suits brought against the Contractor Indemnitees referred to above
and shall pay all expenses and satisfy all judgments which may be incurred by
or rendered against them, or any of them, in connection therewith.  Purchaser shall have the right to settle any
claim or litigation against which it indemnifies hereunder. Further, the
Contractor Indemnitees shall provide to Purchaser such reasonable cooperation
and assistance as Purchaser may request to perform its obligations hereunder.


 


(C)                      Contractor
shall, at its own expense, provide and maintain insurance which shall cover all
WIP (including all Purchaser’s property while in Contractor’s custody) against
physical loss or damage on an “all risks” property insurance basis, including
coverage for the perils of flood or earthquake while in or about Contractor’s
and its Subcontractors’ premises, while at other premises which may be used or
operated by Contractor for construction or storage purposes, and while in
transit, or while at the Launch Site until Intentional Ignition for a Satellite
or upon placing a Satellite into storage.


 


The
amount of insurance shall be sufficient to cover the full replacement value of
all Work. Upon request by Purchaser, Contractor will provide certificate of
insurance to Purchaser. Additionally, Contractor will add Purchaser as an
additional insured under the All Risks insurance as far as Purchaser’s
interests may appear.


 


57

















 


The
insurance may be issued with deductibles, which are consistent with Contractor’s
current insurance policies.  The amount
of any loss up to the value of the deductible level, or not otherwise covered
by the insurance, shall be borne by Contractor.


 


In addition, Contractor shall,
at its own expense, provide and maintain a Commercial General Liability
Insurance Policy (“CGL Policy”) which shall cover property damage and injuries,
including death, caused to third parties. Upon written request by Purchaser,
Contractor will provide a certificate of insurance to Purchaser. Contractor shall use its reasonable best efforts to add
Purchaser as additional insured under such CGL Policy.


 


(D)                     Contractor shall provide to Purchaser,
prior to Intentional Ignition, a written statement containing the following :


 


· the Satellites
to be launched have passed qualification and acceptance tests, including the
FRR, under the Contract, subject to written waivers that have been issued and
approved by Purchaser ; and


 


·  any and all known defects or anomalies observed on (i) already launched
or on ground similar satellites manufactured by Contractor, or (ii) on the
Satellites to be launched during their development, which came to Contractor’s
knowledge prior to the Flight Readiness Review, have been recorded and
investigated and that all required remedy measures have been implemented in
accordance with the applicable quality procedures as far as applicable and in
so far as they would adversely affect the performance of the Satellites to be
launched, such information provided to Purchaser.


 


Article
32.  Effective
Date of Contract


 


(A)                    This Amended and Restated Contract shall
enter into force when all of the following conditions are fulfilled :


 


(i)                                     signature of the
Amended and Restated Contract by both Parties ; and


(ii)                                  signature of the Export Credit Facility between Purchaser and Lender for the financing for
Phase 1, Phase 2 (including LLI for 6 Spacecraft from Phase 3) has occurred as
notified by the Purchaser to the Contractor in writing.


 


N.B.:


(1) All of the above conditions must be
completed No Later Than June 5, 2009 in order to preserve the Terms and
Conditions as set forth in this Amended and Restated Contract.  Therefore, time is of the essence.


 


(2) For convenience, all dates in this Amended
and Restated Contract were based upon an assumed EDC2 of June 5, 2009, meaning
that the first draw down under the Export Credit Facility referred to here
above has occurred prior to that date. 
However, should the first draw down occur later than June 5th, 2009, then all dates in this Amended and Restated
Contract shall be postponed accordingly by the


 


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number of days elapsed between June 5th, 2009
and actual date of the first draw down.


 


Article 33.  Representations


 


(A)                  Contractor represents,
covenants and warrants that :


 


(i)                         Contractor’s
execution of and performance under this Contract will not result in a breach
of, or constitute a default under, any contract, instrument or other agreement
to which Contractor is a party or is bound; and


 


(ii)                      Contractor has full power, authority and legal right to
execute, deliver and perform this Contract, that the execution, delivery and
performance by Contractor of this Contract have been duly authorized by all
necessary action on the part of Contractor and do not require any further
approval or consent of any person or entity (whether governmental or
otherwise), and that once executed by Contractor this Contract shall constitute
a legal, valid and binding obligation of Contractor enforceable against
Contractor in accordance with its terms.


 


(B)                      Purchaser represents, covenants and warrants that :


 


(i)                           Purchaser has
full power, authority and legal right to execute, deliver and perform this
Contract, that the execution, delivery and performance by Purchaser of this
Contract have been duly authorized by all necessary action on the part of
Purchaser and do not require any further approval or consent of any person or
entity (whether governmental or otherwise), and that once executed by Purchaser
this Contract shall constitute a legal, valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms.


 


(ii)                        Purchaser’s
execution of and performance under this Contract does not result in a breach
of, or constitute a default under, any contract, instrument or other agreement
to which Purchaser is a party or is bound.


 


Article 34.  General
Provisions


 


(A)                  Each Party hereby agrees
that it will not, without the prior written approval of the other Party (such
approval not to be unreasonably withheld or unduly delayed), assign or delegate
any of their rights, duties, and obligations under this Contract, except to a
wholly-owned subsidiary of such Party (which assignment or delegation shall not
relieve the assignor or delegator of liability). In case of assignment by Purchaser, Purchaser shall
demonstrate to Contractor’s satisfaction that its successor or assignee possesses the
financial resources to fulfill Purchaser’s obligations under this Contract.  Upon such assignment, the
assignee shall assume all rights and obligations of the assignor existing


 


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under
this Contract at the time of such assignment. This Article 34(A) shall not
preclude the granting of a security interest by a Party to a lender.


 


(B)                    Nothing contained in this
Contract shall be deemed or construed by the Parties or by any third party to
create any rights, obligations or interests in third parties, or to create the
relationship of principal and agent, partnership or joint venture or any other
fiduciary relationship or association between the Parties and the rights and
obligations of the Parties shall be limited to those expressly set forth
herein.


 


(C)                    No failure on the part of
either Party to notify the other Party of any noncompliance hereunder, and no
failure on the part of either Party to exercise its rights hereunder, shall
prejudice any remedy for any subsequent noncompliance with any term or
condition of this Contract and shall be limited to the particular instance and
shall not operate or be deemed to waive any future breaches or noncompliance
with any term or condition.  Except as
otherwise expressly provided herein, all remedies and rights hereunder shall be
exclusive and in lieu of all other rights and remedies available by law or in
equity.


 


(D)                   The Parties shall comply
with the United States Foreign Corrupt Practices Act, the OECD Antibribery
Convention and all other laws of any country dealing with improper or illegal
payments, gifts or gratuities. Contractor agrees not to pay, promise to pay or
authorize the payment of any money or anything of value, directly or indirectly
to any person for the purpose of illegally or improperly inducing a decision or
obtaining or retaining business in connection with this Contract.


 


(E)                     This Contract (including all
Exhibits and Appendices) constitutes the entire agreement between the Parties
and supersedes all prior understandings, commitments and representations
between the Parties with respect to the subject matter hereof. In particular,
this Contract supersedes the ATP entered into by and between the Parties. The
Work performed by Contractor pursuant to the ATP and any amounts paid by the
Purchaser to Contractor under the ATP are considered as Work performed and
costs incurred and paid in the performance of this Contract.


 


The
Escrow Agreement is separate and independent from this Contract. The Parties do
not intend for this Contract and the Escrow Agreement to constitute a single
agreement.


 


This
Contract may not be amended or modified and none of its provisions may be
waived, except by a writing signed by an authorized representative of the Party
against which the amendment, modification or waiver is sought to be enforced.


 


In
the event any one or more of the provisions of this Contract shall for any
reason be held to be invalid or unenforceable, the remaining provisions of this
Contract shall be unimpaired, and the invalid or unenforceable provision shall
be replaced by a provision which, being valid and enforceable, comes closest to
the intention of the Parties underlying the invalid or unenforceable
provisions. The Parties shall negotiate in good faith to attempt to agree upon
any such replacement provision.


 


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The
paragraph headings herein shall not be considered in interpreting the text of
this Contract.


 


All
oral and written communications between the Parties shall be conducted in
English.


 


This
Contract shall be governed by and interpreted in accordance with the laws of
the State of New York, U.S.A., excluding its conflict of laws rules. The U.N.
Convention on Contracts for the International Sales of Goods is not applicable
to this Contract.


 


(F)                       In view
of a number of factors, including the substantial payments to Subcontractors
that Contractor will be making in connection with its performance under this
Contract, the Parties acknowledge and agree that if Purchaser should become a
debtor in a case under the United States Bankruptcy Code, Contractor would be
severely and irreparably damaged unless Purchaser continues uninterrupted and
timely performance of its obligations under the Contract and promptly assumes
or rejects this Contract.  In continuing
to perform this Contract following a bankruptcy filing by the Purchaser,
Contractor would incur millions of Euros of expense (including commitments to
Subcontractors) that Contractor could avoid incurring through termination
clauses if the Contract ultimately is to be rejected in a bankruptcy
proceeding. Accordingly, if Purchaser should become a debtor in a case (the “Bankruptcy
Case”) under the United States Bankruptcy Code, Purchaser shall, within thirty
(30) days after the commencement of the Bankruptcy Case, (i) promptly advise
Contractor of such, (ii) file a motion (the “Motion”) with the bankruptcy court
presiding over the Bankruptcy Case seeking an order approving Purchaser’s
assumption or rejection of this Contract within such thirty day period, and (iii)
obtain a final and non-appealable order (the “Order”) approving the assumption
or rejection of this Contract. Purchaser agrees that it shall not, without the
prior written consent of Contractor, withdraw the Motion or adjourn any hearing
on the Motion.  Purchaser further agrees
that it will promptly take and diligently pursue any and all actions necessary
and/or appropriate, including such actions as may be reasonably requested by
Contractor, to obtain the Order within the thirty (30) day period set forth
above.  In the event Purchaser does not file the Motion and obtain the Order
within thirty (30) days after the commencement of the Bankruptcy Case, Contractor
shall, in addition to any other rights and/or remedies it has or may have, be
entitled to stop the Work under this Contract. 
Following such Work stoppage, if Purchaser still has not filed the Motion and obtained the Order within
thirty (30) days after Contractor has stopped the Work then, Contractor
shall be entitled to terminate the Contract by written notice sent to Purchaser
and the provisions of Article 22(B)(iv) shall apply.


 


Purchaser acknowledges that the
provisions of this Article 34(F) are
critical elements of the transaction to Contractor. The Parties have consulted
legal counsel experienced in such issues, and agree that a provision of this
type is beneficial in these circumstances.


 


(G)                      Purchaser
agrees to give to Contractor access to its financial information and to provide
to Contractor an update, via teleconference call as frequently as requested by
Contractor, of measures implemented or anticipated to secure full financing of
the constellation.


 


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Execution


 


In witness whereof, the Parties have duly
executed this Contract.


 


 


	
  Globalstar,
  Inc.

  	
   

  	
  Thales
  Alenia Space France

  



 


 


	
  By:

  	
  /s/ Anthony J. Navarra

  	
   

  	
  By:

  	
  /s/ Blaise Jaeger

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:  

  	
  Anthony J. Navarra

  	
   

  	
  Name:  

  	
  Blaise JAEGER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  EVP and General Manager, Telecom

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  June 2, 2009

  	
   

  	
  Date:

  	
  June 3, 2009

  



 


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