Exhibit 10.31


 


AGREEMENT


 


This
Agreement (this “Agreement”) is entered into as of March 2, 2005 by
and between SES Global Satellite Leasing Limited, an Isle of Man company with
offices at 15-19 Athol Street, Douglas, Isle of Man IM1 1LB (“SES”), and New Skies
Satellites B.V. (“NSS”), a Dutch limited liability company with offices
at Rooseveltplantsoen 4, 2517 KR, The Hague, The Netherlands.


 


WHEREAS,
the Government of the Netherlands (the “Dutch Government”) secured
rights to operate a telecommunications satellite at the 105° West orbital arc
position (“105° West”) pursuant to the “NSS-12” filing (CR/C/270) (the “NSS-12
Filing”) and the “NSS-33” filing (API/A/1860, IFIC number 2445)
(collectively referred to as the “NSS Filings”) made by the Dutch Government
with the International Telecommunication Union (“ITU”) in accordance with the
Radio Regulations of the ITU; and


 


WHEREAS,
the Dutch Government granted NSS the exclusive right to operate a satellite at
105° West and exploit the rights afforded under the NSS Filings relating to
such orbital position; and


 


WHEREAS,
the Government of Gibraltar through the United Kingdom also secured rights
under the “GIBSAT Al” filing (CR/C/443) (the “GIBSAT Filing”) it made with the
ITU to operate a telecommunications satellite at 105° West using certain of the
C-band frequencies overlapping with those contained in the NSS Filings (the “Overlapping
Frequencies”): and


 


WHEREAS,
SES is lawfully authorized to use the C-band assignments of the GIBSAT Filing
at 105° West.


 


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


 


1.


(a)  NSS shall use commercially reasonable efforts
(i) to cause the Dutch Government to deliver, within thirty (30) calendar days
of the date of this Agreement or such longer period as the parties may agree in
writing, a letter substantially in the form of Exhibit A (or a letter having
substantially the same intent and effect and providing substantially the same
benefit to SES) to the administration of United Kingdom in respect of 105° West
(the “Coordination Letter”) and (ii) to ensure that copies of the Coordination
Letter and all applicable notifications are properly delivered to and made by the
Dutch Government at the ITU in a timely fashion. NSS shall provide SES with a
copy of the Coordination Letter following delivery of it by the Dutch
Government to the administration of the United Kingdom.


 


(b)  Subject to the provisions of Section 1(d)
below, NSS agrees not to implement or bring in to use any of the C-band
frequency assignments registered under


 





















 


the NSS Filings at 105° West or at an orbital
position within five (5) degrees or less adjacent to 105° West which are
co-frequency with those of the GIBSAT Filing, nor authorize any other person or
entity to use the NSS Filings, in each case without SES’s prior written
consent, which SES may withhold in its sole discretion.


 


(c)  Subject to the provisions of Section 1(d)
below, NSS shall not object if SES or an affiliated company of SES or any
entity permitted or authorized by SES brings into use the GIBSAT Filing by
operating a spacecraft operating transponders using the Overlapping Frequencies
at 105° West. Without prejudice to the provisions of Section 1(b), NSS
will further ensure that any present or future operations and use of or authorized
by NSS or any affiliate of NSS or any entity authorized by NSS with respect to
any frequencies, orbital locations or ITU filings at 105° West or less than two
(2) degrees adjacent to 105° West shall require the prior written consent of
SES, such consent not to be unreasonably withheld or delayed. For the avoidance
of doubt, the parties agree that any future operations and use of or authorized
by NSS or any affiliate of NSS or any entity authorized by NSS with respect to
any frequencies, orbital locations or ITU filings (other than the NSS Filings
which shall be addressed by this Agreement) two (2) or more degrees adjacent to
105° West are not intended to be and shall not be addressed by this Section 1(c),
but shall be addressed by the parties in accordance with the relevant
international and national treaties, laws, rules, and regulations then applicable.


 


(d)  In the event that the Dutch Government does
not deliver the Coordination Letter to the administration of the United Kingdom
within the 30-day time period or such longer agreed period as described in Section l(a)
(i) above, then this Agreement shall be deemed terminated and shall have no
further force and effect unless renewed and extended by mutual consent of the
parties; provided, however, that the obligations in Sections 10, 11,12 and 14
hereof shall survive any such termination.


 


2.                                                               In consideration of
NSS’ performance of this Agreement, within ten (10) business days following the
delivery by the Dutch Government to the administration of United Kingdom of the
Coordination Letter described in Section l(a) (i) above, SES shall pay to
NSS by wire transfer the sum of Ten Million United States Dollars
(US$10,000,000.00) to the following account:


 


	
  Account Name:

  	
   

  	
  New Skies Satellites BV

  
	
  Account Number

  	
   

  	
  52.73.52.993

  
	
  Bank:

  	
   

  	
  ABN AMRO Bank NV

  
	
  Address:

  	
   

  	
  Gustav Mahlerlaan 10,

  
	
   

  	
   

  	
  1000 EA Amsterdam

  
	
   

  	
   

  	
  The Netherlands

  
	
  SWIFT:

  	
   

  	
  ABNANL2A

  



 


SES shall procure the delivery of a letter
addressed from SES Global S.A. to NSS in the form attached as Exhibit B and
dated as of the date of this Agreement providing assurances of the performance
of SES’ obligations hereunder.


 


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3.                                                               NSS hereby
represents and warrants to SES that:


 


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


 


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


 


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


 


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


 


(e)  It has not granted any rights or incurred any
obligations to act or refrain from acting in connection with 105° West or the
NSS Filings.


 


4.                                                               SES hereby
represents and warrants to NSS that:


 


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


 


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


 


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


 


(d)  The statements concerning SES and the GIBSAT
Filing in the Whereas clauses above are true and accurate.


 


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


 


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obligations hereunder, then the non-breaching
party shall also be entitled to exercise all rights available to it under law
or in equity.


 


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


 


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


 


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


 


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


 


10.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF ENGLAND AND WALES, AND SUCH LAWS SHALL
APPLY TO ANY DISPUTES OR CONTROVERSIES ARISING HEREUNDER. EACH PARTY HERETO
AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR
CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN
EQUITY, EXCLUSIVELY IN THE COURTS OF ENGLAND (THE “CHOSEN COURT”) AND
(I) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURT, (II)
WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE
CHOSEN COURT, (III) WAIVES ANY OBJECTION THAT THE CHOSEN COURT IS AN
INCONVENIENT FORUM OR DOES NOT HAVE JURISDICTION OVER ANY PARTY HERETO, AND (IV)
AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH ACTION OR PROCEEDING
SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH SECTION 12 OF
THIS AGREEMENT.


 


11.  Limitation of Liability.
Notwithstanding anything else herein to the contrary, in no event will either
party be liable for any incidental, consequential or special damages or loss of
revenues, whether foreseeable or not, occasioned by any default by such party
hereunder or any other cause. In no event will either party be liable for any
direct damages in excess of US$ 10,000,000.00 (plus, as determined by any
applicable court, applicable interest, legal costs and


 


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attorneys fees) as a result of any default
hereunder or any other cause unless as a result of such party’s willful breach
of its obligations set forth herein. The parties expressly acknowledge and
agree that no claims may be made for breach hereunder unless such claims relate
to breaches occurring before December 31, 2007.


 


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


 


To NSS:


 


New Skies Satellites B.V.

Rooseveltplantsoen 4

2517KR The Hague

The Netherlands

Attention:  General Counsel

Facsimile No.: +31-70 306 4101


 


To SES:


 


SES Global Satellite
Leasing Limited


15-19 Athol Street,


Douglas,


Isle of Man IM1 1LB
Attention: Company Secretary


Facsimile No.: +44 1624
638333


 


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


 


14.  Each of the parties hereby agrees that,
except as may be required to comply with the requirements of all applicable
laws or rules of a recognized stock exchange, no press release or similar
public announcement or communication shall be made or caused to be made
concerning the execution or performance of this Agreement or its contents
unless specifically approved in advance by the other party hereto (which
approval shall not be unreasonably withheld or delayed). In the event of
disclosure required by law or rule of a recognized stock exchange,


 


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disclosure may be permitted so long as prior to any
such disclosure the disclosing party provides the other party with the greatest
notice permitted under the circumstances, so that the disclosing party may seek
a protective order or other appropriate remedy. In any such event, the
disclosing party will disclose only such information as is legally required and
will exercise reasonable efforts to obtain confidential treatment for any
information being disclosed.


 


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


 


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


 


	
  NEW SKIES SATELLITES B.V.

  	
  SES GLOBAL SATELLITE

  LEASING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel S. Goldberg

  	
   

  	
  /s/ Romain Bausch

  	
   

  
	
  By: DANIEL S. GOLDBERG

  	
  By: ROMAIN BAUSCH

  
	
  Title: CHIEF EXECUTIVE OFFICER

  	
  Title: PRESIDENT & CEO

  
	
  Date: 2 MARCH 2005

  	
  Date: 2 MARCH 2005

  
				



 


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