** **

**Exhibit 10.1**

 

 

Dated 5 June 2009

 

**COFACE FACILITY AGREEMENT**

 

between

 

**GLOBALSTAR, INC.**as theBorrower,

 

**BNP PARIBAS**

**SOCIÉTÉ GÉNÉRALE**

**NATIXISCALYON**

and

**CRÉDIT INDUSTRIEL ETCOMMERCIAL**as theMandated Lead Arrangers,

 

**BNP PARIBAS**as theSecurity Agentand the COFACE Agent

 

and

 

**THE BANKS AND FINANCIALINSTITUTIONS**listed in Schedule 1as the Original Lenders

 

 

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**TABLE OF CONTENTS**

 
| ** ** | ** **                             | **Page** |
|------------|----------------------------------------|----------|
|       |                                   |     |
| 1.         | DEFINITIONS AND INTERPRETATION         | 3        |
|       |                                   |     |
| 2.         | THE FACILITIES                         | 48       |
|       |                                   |     |
| 3.         | PURPOSE                                | 49       |
|       |                                   |     |
| 4.         | CONDITIONS OF UTILISATION              | 51       |
|       |                                   |     |
| 5.         | UTILISATION                            | 53       |
|       |                                   |     |
| 6.         | REPAYMENT                              | 56       |
|       |                                   |     |
| 7.         | PREPAYMENT AND CANCELLATION            | 57       |
|       |                                   |     |
| 8.         | INTEREST                               | 65       |
|       |                                   |     |
| 9.         | INTEREST PERIODS                       | 66       |
|       |                                   |     |
| 10.        | CHANGES TO THE CALCULATION OF INTEREST | 67       |
|       |                                   |     |
| 11.        | FEES                                   | 68       |
|       |                                   |     |
| 12.        | COFACE INSURANCE PREMIA                | 69       |
|       |                                   |     |
| 13.        | TAX GROSS-UP AND INDEMNITIES           | 71       |
|       |                                   |     |
| 14.        | INCREASED COSTS                        | 74       |
|       |                                   |     |
| 15.        | OTHER INDEMNITIES                      | 75       |
|       |                                   |     |
| 16.        | MITIGATION BY THE LENDERS              | 77       |
|       |                                   |     |
| 17.        | COSTS AND EXPENSES                     | 77       |
|       |                                   |     |
| 18.        | REPRESENTATIONS                        | 78       |
|       |                                   |     |
| 19.        | INFORMATION UNDERTAKINGS               | 91       |
|       |                                   |     |
| 20.        | FINANCIAL COVENANTS                    | 100      |
|       |                                   |     |
| 21.        | POSITIVE UNDERTAKINGS                  | 104      |
|       |                                   |     |
| 22.        | NEGATIVE UNDERTAKINGS                  | 116      |
|       |                                   |     |
| 23.        | EVENTS OF DEFAULT                      | 128      |
|       |                                   |     |
| 24.        | REMEDIES UPON AN EVENT OF DEFAULT      | 135      |
|       |                                   |     |
| 25.        | SECURITY                               | 135      |

 

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| 26.    | CHANGES TO THE LENDERS                                                        | 135    |
|--------|-------------------------------------------------------------------------------|--------|
|   |                                                                          |   |
| 27.    | CHANGES TO THE BORROWER                                                       | 140    |
|   |                                                                          |   |
| 28.    | ROLE OF THE COFACE AGENT, THE SECURITY AGENT AND THE  MANDATED LEAD ARRANGERS | 140    |
|   |                                                                          |   |
| 29.    | CONDUCT OF BUSINESS BY THE FINANCE PARTIES                                    | 148    |
|   |                                                                          |   |
| 30.    | SHARING AMONG THE FINANCE PARTIES                                             | 148    |
|   |                                                                          |   |
| 31.    | PAYMENT MECHANICS                                                             | 150    |
|   |                                                                          |   |
| 32.    | SET-OFF                                                                       | 154    |
|   |                                                                          |   |
| 33.    | NOTICES                                                                       | 154    |
|   |                                                                          |   |
| 34.    | CALCULATIONS AND CERTIFICATES                                                 | 156    |
|   |                                                                          |   |
| 35.    | PARTIAL INVALIDITY                                                            | 156    |
|   |                                                                          |   |
| 36.    | REMEDIES AND WAIVERS                                                          | 156    |
|   |                                                                          |   |
| 37.    | AMENDMENTS AND WAIVERS                                                        | 157    |
|   |                                                                          |   |
| 38.    | COUNTERPARTS                                                                  | 158    |
|   |                                                                          |   |
| 39.    | GOVERNING LAW                                                                 | 158    |
|   |                                                                          |   |
| 40.    | ENFORCEMENT                                                                   | 158    |

 

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**THISAGREEMENT**(the “**Agreement**”)****is dated 5 June 2009 and made

 

**BETWEEN:**

 

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

 

**(2)****                                ****BNPPARIBAS**,a *société anonyme*with a share capital oftwo billion four hundred sixty five million five hundred and twelve thousandseven hundred and fifty eight Euros (€2,465,512,758) organised and existingunder the laws of the Republic of France, whose registered office is at16 boulevard des Italiens, 75009 Paris, France registered undernumber 662 042 449 at the Commercial Registry of Paris, actingin its capacity as facility agent and *Chef de File*for and on behalf of the Finance Parties (the “**COFACE Agent**”);

 

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

 

**(4)****                                ****BNPPARIBAS**,a *société anonyme*with a share capital oftwo billion four hundred sixty five million five hundred and twelve thousandseven hundred and fifty eight Euros (€2,465,512,758) organised and existingunder the laws of the Republic of France, whose registered office is at16 boulevard des Italiens, 75009 Paris, France registered undernumber 662 042 449 at the Commercial Registry of Paris, actingin its capacity as the security agent (the “**SecurityAgent**”); and

 

**(5)****                                ****THEFINANCIAL INSTITUTIONS** listed in Schedule 1 (*Lenders and Commitments*) as lenders (the “**OriginalLenders**”).

 

# **1.**                                      DEFINITIONS AND INTERPRETATION

# ** **

## **1.1**                                Definitions

## ** **

In thisAgreement:

 

“**Acceptable Bank**” means:

 

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

 

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

 

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

 

“**Acceptable Intercreditor Agreement**” means an intercreditoragreement in form and substance satisfactory to the COFACE Agent to be enteredinto by the Borrower 

 

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or anySubsidiary (as the case may be), the COFACE Agent and the relevant provider ofSubordinated Indebtedness.  SuchAcceptable Intercreditor Agreement shall include, without limitation, thefollowing provisions, whereby the relevant Subordinated Indebtedness providershall agree not to:

 

(a)                                  seek direct or indirect recovery, paymentor repayment of, nor permit direct or indirect payment or repayment of any ofthe Subordinated Indebtedness or other amounts payable by the Borrower or anySubsidiary (as the case may be) in respect thereof or of any other SubordinatedIndebtedness of the Borrower or any Subsidiary (as the case may be) other thanfollowing satisfaction of the conditions to the making of Shareholder Distributionsin accordance with Clause 22.6 (*Limitations on Dividendsand Distributions*);

 

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

 

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

 

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

 

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

 

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

 

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

 

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“**Adjusted Consolidated EBITDA**” means, for any period, ConsolidatedEBITDA for such period *provided that*,for the purpose of calculating the Consolidated Net Income component ofConsolidated EBITDA, any cash revenue received in that period but notrecognised under GAAP shall be included, *plus*(in thecase of paragraphs (a), (b) and (c) only, to the extent deductedin the calculation of Consolidated EBITDA (without double-counting)):

 

(a)                                  non-cash stock compensation expenses;

 

(b)                                 non-cash asset impairment charges;

 

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

 

(d)                                 non-capitalised cash payments, if any, tosecond generation ground segment vendors made from earnings counted during therelevant period,

 

but excluding the proceeds of any EquityIssuance or any Subordinated Indebtedness.

 

“**Adjusted Consolidated EBITDA Reconciliation**” means, for anyperiod, a reconciliation statement prepared by the Borrower in a formreasonably acceptable to the COFACE Agent showing a reconciliation of:

 

(a)                                  cash revenue received in that period butnot recognised under GAAP, as determined in accordance with the definition ofAdjusted Consolidated EBITDA; *to*

 

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

 

“**Advance Payment**” means an advance payment:

 

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

 

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

 

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

 

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

 

“**Applicable Margin**” means in respect of eachFacility:

 

(a)                                  for any Interest Period commencing prior to15 December 2012, two point zero seven *per cent*.**(2.07%)per annum;

 

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(b)                                 for any Interest Period commencing from15 December 2012 until 14 December 2017, two point twentyfive *per cent*.**(2.25%) per annum; and

 

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

 

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

 

“**Attributable Indebtedness**” means, on any date:

 

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

 

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

 

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

 

“**Authorised Signatory**”means, with respect to the Supplier and the Launch Services Provider, a personauthorised to sign any document on its behalf to be delivered pursuant to thisAgreement.

 

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

 

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

 

(b)                                 15 November 2011.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

*exceeds*:

 

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

 

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

 

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

 

“**Capital Assets**” means, with respect to the Borrower and itsSubsidiaries:

 

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

 

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

 

“**Capital ExpenditureAccount**” has the meaning given to such term in the AccountsAgreement.

 

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

 

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

 

“**Capital Stock**” means:

 

(a)                                  in the case of a corporation, capitalstock;

 

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(b)                                 in the case of an association or businessentity, any and all shares, interests, participations, rights or otherequivalents (however designated) of capital stock;

 

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

 

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

 

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

 

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

 

(a)                                  that cash is repayable on demand;

 

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

 

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

 

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

 

“**Cash Contribution Agreemen**ts”****means each cash contribution agreementmade between:

 

(a)                                  the Launch Services Provider and Thermo;and

 

(b)                                 Hughes and Thermo,

 

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

 

“**Cash Equivalent Investments**” means at any time:

 

(a)                                  certificates of deposit maturing withinone (1) year after the relevant date of calculation and issued by anAcceptable Bank;

 

(b)                                 any investment in marketable debt obligationsissued or guaranteed by the government of the United States of America,the United Kingdom, any member state of the European Economic Area or anyParticipating Member State or by an instrumentality or agency of any of themhaving an equivalent credit rating, maturing within one (1) year after therelevant date of calculation and not convertible or exchangeable to any othersecurity;

 

8

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(c)                                  commercial paper notconvertible or exchangeable to any other security:

 

(i)                                     for which a recognised trading marketexists;

 

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

 

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

 

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

 

(d)                                 any investment in money marketfunds which:

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Code**” means theUS Internal Revenue Code of 1986, and the rules and regulationsthereunder, each as amended or modified from time to time.

 

“**COFACE**” means *La**CompagnieFrançaise d’Assurance pour le Commerce Extérieur*a French *sociétéanonyme*witha share capital of one hundred and seven million sixty five thousand eighthundred and one Euros and sixty six cents (€107,065,801.66) whose registeredoffice is at La Défense, 10-12 CoursMichelet, 92800, Puteaux, France and registered at the *Registre duCommerce et des Societ**és of Nanterre* with registerednumber 552 069 791.

 

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

 

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to articles L.432-1 to L.432-4 of theFrench *Code des Assurances*and signed by the COFACE Agent and theOriginal Lenders.

 

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

 

“**Collateral**”means the collateral security for the Obligations pledged or granted pursuantto the Security Documents.

 

“**Collateral Agreement**” means the security agreement substantiallyin the form agreed between the Borrower and the Security Agent on the date ofthis Agreement (or as otherwise satisfactory to the Security Agent) between theBorrower, each Domestic Subsidiary and the Security Agent.

 

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

 

“**Commercial Contracts**” means:

 

(a)                                  theLaunch Services Contract; and

 

(b)                                 theSatellite Construction Contract,

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(a)                                  Consolidated Net Income for such period; *plus*

 

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

 

(i)                                     income and franchise taxes;

 

(ii)                                  Consolidated Interest Expense;

 

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

 

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

 

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

 

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

 

“**Consolidated InterestExpense**” means, with respect to the Borrower and its Subsidiariesfor any period, the gross interest expense (including, interest expenseattributable to Capital Leases and all net payment obligations pursuant toHedging Agreements but excluding any non-cash interest) of the Borrower and itsSubsidiaries, all determined for such period on a Consolidated basis, withoutduplication, in accordance with GAAP.

 

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

 

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

 

(b)                                 the net income (or loss) of any personaccrued prior to the date it becomes a Subsidiary of such person or is mergedinto or consolidated with such person or any of its Subsidiaries or that person’sassets are acquired by such person or 

 

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any ofits Subsidiaries except to the extent included pursuant to the foregoingparagraph (a);

 

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

 

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

 

“**Contingent Equity Release Date**” has the meaning given tosuch term in the Accounts Agreement.

 

“**Contingent Equity Required Balance**” has the meaning given tosuch term in the Accounts Agreement.

 

“**Contract Price**” means the aggregateprice to be paid by the Borrower to:

 

(a)                                  theSupplier under and in relation to the Satellite Construction Contract being anamount (in aggregate) equal to two hundred ninety eight million nine hundrednineteen thousand nine hundred and five Euros (€298,919,905) *plus* two hundred eighteen million fourhundred eighty three thousand two hundred and seventeen Dollars and eighty twocents (US$218,483,217.82); and

 

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

 

“**Convertible Note Reserve Account**” has the meaning given tosuch term in the Accounts Agreement.

 

“**Convertible Notes**” means the five point seventy five *per cent.***(5.75%) senior notes issued by the Borrower and due in2028.

 

“**Covenant Capital Expenditure**” means all Capital Expendituresother than Excluded Capital Expenditures.

 

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

 

“**CurrentLiabilities**” has the meaninggiven to such term under GAAP but *excluding*the current portion of any long-term Financial Indebtedness outstanding on thedate of calculation.

 

“**Debt Issuance**” means any issuance of any FinancialIndebtedness for borrowed money by the Borrower or any of itsSubsidiaries.  The term “*Debt Issuance*” shall not include any Equity Issuance or anyAsset Disposition.

 

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“**Debt Service**” means the aggregate Dollar amount ofprincipal, interest, and, if any, fees and other sums required to be paid bythe Borrower pursuant to the Finance Documents and pursuant to all the Borrower’sFinancial Indebtedness incurred from time to time, including all amounts whichhave become due and payable as at the date of calculation but which have notbeen paid on such date for the Relevant Period.

 

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

 

“**Debt Service Coverage Ratio**” means, onany date, the ratio of:

 

(a)                                  AdjustedConsolidated EBITDA (without double-counting),

 

(i)                                     *plus*, any Liquidity (in an amount exceeding fivemillion Dollars (US$5,000,000)) at the beginning of any relevant period ofcalculation *plus* the cashproceeds of any Equity Issuance or Subordinated Indebtedness raised during therelevant period not committed, or required to be applied, for any other purposeunder the Finance Documents but including monies standing to the credit of theCollection Account which are not required to be applied for any other purpose;

 

(ii)                                  *less*the sum of the following (withoutdouble-counting);

 

(A)                              anyCovenant Capital Expenditure;

 

(B)                                anychanges in Working Capital; and

 

(C)                                anycash taxes,

 

*to*

 

(b)                                 DebtService,

 

in each case, duringthe relevant period of calculation.

 

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

 

“**Debt Service ReserveAccount**” has the meaning given to such term in the AccountsAgreement.

 

“**Default**” meansan Event of Default or any event or circumstance specified in Clause 23 (*Events of Default*) which would (with the expiry of a graceperiod, the giving of notice, the making of any determination under the FinanceDocuments or any combination of any of the foregoing) be an Event of Default.

 

“**Delegation Agreement**” means each French law delegation agreementsubstantially in the form agreed between the Borrower and the Security Agent onthe date of this Agreement (or as otherwise satisfactory to the Security Agent)between the Borrower, the Security Agent and the Supplier or the LaunchServices Provider (as the case may be).

 

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“**Disruption Event**” means either or both of:

 

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

 

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

 

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

 

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

 

and which (in either such case) is notcaused by, and is beyond the control of, the Party whose operations aredisrupted.

 

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

 

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

 

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

 

“**DSRA Providers**” means:

 

(a)                                  the Supplier;

 

(b)                                 the Launch Services Provider; and

 

(c)                                  Hughes.

 

“**DSRA Required Balance**”****means:

 

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

 

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

 

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

 

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

 

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

 

(c)                                  from and including the datethat is six (6) Months prior to the third Repayment Date until the FinalMaturity Date, an amount in aggregate equal to all principal, interest, fees,costs and expenses due and payable by the Borrower under the Finance Documentson the next Payment Date *provided that*,if LIBOR exceeds the capped interest rate set out in the Interest Rate CapAgreement, the amount of such capped interest rate shall be used for thepurpose of calculating any interest under this paragraph (c) to the extentsuch agreement is in full force and effect.

 

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

 

“**Eligible Amount**” means:

 

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

 

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

 

“**Eligible Goods and Services**” means:

 

(a)                                  goods made in France and/or servicesperformed in France; and

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**EnvironmentalPermits**” means any permit and other Authorisation and the filing ofany notification, report or assessment under any Environmental Law for theoperation of the business of any member of the Group conducted on or from theproperties owned or used by any member of the Group.

 

“**EquityCure Contribution**” means cash funds (including any amounts standingto the credit of the Thermo Contingent Equity Account and/or the BorrowerContingent Equity Account) contributed to the Borrower by equity and/orSubordinated 

 

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Indebtedness (excluding the Initial Equityand any amount of any Equity Issuance or Subordinated Indebtedness applied inaccordance with Clause 5.2(b)(i) to (iii) (*PermittedWithdrawals from the Collection Account*) of the Accounts Agreement).

 

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

 

(a)                                  shares of its Capital Stock;

 

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

 

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

 

The term “*EquityIssuance*” shall not include any Asset Disposition, any Debt Issuanceor the conversion of the Convertible Notes.

 

“**Ericsson**”means Ericsson Federal Inc. a Delaware corporation with a place of business at1595 Spring Hill Road, Vienna, VA 22182, United States.

 

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

 

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

 

“**ERISA Termination Event**” means:

 

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

 

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

 

(c)                                  the termination of a Pension Plan, thefiling of a notice of intent to terminate a Pension Plan or the treatment of aPension Plan amendment as a termination, under Section 4041 of ERISA, ifsuch termination would require material additional contributions in order to beconsidered a standard termination within the meaning of Section 4041(b) ofERISA, or the filing under Section 4041(c) of ERISA of a notice ofintent to terminate any Pension Plan or the termination of any Pension Planunder Section 4041(c) of ERISA; or

 

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

 

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

 

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(f)                                    the failure to make a required contributionto any Pension Plan that would reasonably be expected to result in theimposition of a Lien or the provision of security under Section 412 or 430of the Code or Section 302 or 4068 of ERISA, or the arising of such aLien; there being or arising any “*unpaid minimum requiredcontribution*” or “*accumulated fundingdeficiency*” (as defined or otherwise set forth in Section 4971of the Code or Part 3 of Subtitle B of Title I of ERISA), whetheror not waived; or the filing of any request for or receipt of a minimum fundingwaiver under Section 412 of the Code or Section 302 of ERISA withrespect to any Pension Plan or Multiemployer Plan, or that such filing may bemade; or a determination that any Pension Plan is, or is expected to be, inat-risk status under Title IV of ERISA; or

 

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

 

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

 

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

 

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

 

“**Escrow Account**”means the escrow account with Société Générale pursuant to the escrow agreementmade between the Borrower, the Supplier and Société Générale, S.A. dated21 December 2006.

 

“**Euro**” or “**€**” means the single currency of the Participating MemberStates.

 

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

 

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

 

(a)                                  AdjustedConsolidated EBITDA for such period;

 

*minus*(to theextent not already deducted in the calculation of Adjusted ConsolidatedEBITDA),

 

(b)                                 the sumof the following (without double-counting):

 

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

 

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(ii)                                  allscheduled principal payments made in respect of Financial Indebtedness duringsuch period;

 

(iii)                               allCovenant Capital Expenditures made during such period (to the extent funded byearnings counted in the calculation of Adjusted Consolidated EBITDA);

 

(iv)                              anychanges to Working Capital during such period;

 

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

 

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

 

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

 

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

 

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

 

“**Excluded Capital Expenditure**” meansCapital Expenditures funded:

 

(a)                                  withNet Cash Proceeds received in connection with:

 

(i)                                     anInsurance and Condemnation Event or an Asset Disposition and reinvested inaccordance with Clause 7.5 (*Mandatory Prepayment - Insurance and CondemnationEvents*); or

 

(ii)           an Equity Issuance; or

 

(b)                                 by theissuance of Capital Stock of the Borrower to the seller (or an affiliatethereof) of the related Capital Asset.

 

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

 

“**Facilities**” means:

 

(a)                                  Facility A; and

 

(b)                                 Facility B,

 

and, “**Facility**” meanseither of the foregoing as the context requires.

 

“**Facility A**” hasthe meaning given to such term in Clause 2.1(a) (*Facility Aand Facility B*).

 

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“**Facility A Commitment**” means:

 

(a)                                  in relation to an Original Lender, theamount in Dollars set opposite its name under the heading “*Facility ACommitments US$*” in Part A (*Facility A*) of Schedule1 (*Lenders and Commitments*) and the amount of any otherFacility A Commitment transferred to it under this Agreement; and

 

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

 

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

 

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

 

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

 

“**Facility B Commitment**” means:

 

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

 

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

 

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

 

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

 

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

 

“**FCC**” shall meanthe Federal Communications Commission.

 

“**FDIC**” means theFederal Deposit Insurance Corporation.

 

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

 

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

 

(a)                                  thetwenty-fourth (24th) Satellite hasreached its final altitude;

 

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

 

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

 

as certified by theBorrower in accordance with Clause 19.9 (*FinalIn-Orbit Acceptance*).

 

“**Finance Documents**” means:

 

(a)                                  this Agreement;

 

(b)                                 the Accounts Agreement;

 

(c)                                  the Supplier Direct Agreement;

 

(d)                                 the LSP Direct Agreement;

 

(e)                                  each Security Document;

 

(f)                                    each Guarantee Agreement;

 

(g)                                 any Transfer Certificate;

 

(h)                                 each Promissory Note;

 

(i)                                     the Supplier Guarantee;

 

(j)                                     the Subordination Deed; and

 

(k)                                  any other document designated in writing asa “*Finance Document*” by the COFACE Agentand the Borrower (acting reasonably),

 

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

 

“**Finance Parties**” means:

 

(a)                                  the COFACE Agent;

 

(b)                                 each Mandated Lead Arranger;

 

(c)                                  the Security Agent; and

 

(d)                                 the Lenders,

 

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

 

“**Financial Close**”means the date on which each of the conditions precedent referred to inClause 4.1 (*Initial Conditions Precedent*) andClause 4.2 (*Further Conditions*

 

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*Precedent*) have been satisfied orwaived in accordance with the terms of this Agreement.

 

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

 

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

 

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

 

(i)                                     not more than ninety (90) days pastdue; or

 

(ii)                                  being duly contested by the Borrower ingood faith;

 

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

 

(d)                                 all Financial Indebtedness of any thirdparty secured by a Lien on any asset owned or being purchased by the Borroweror any of its Subsidiaries (including indebtedness arising under conditionalsales or other title retention agreements), whether or not such indebtednessshall have been assumed by the Borrower or any of its Subsidiaries or islimited in recourse;

 

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

 

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

 

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

 

(h)                                 all Net Hedging Obligations.

 

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

 

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

 

(b)                                 15 June 2011.

 

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“**Fiscal Year**”means the fiscal year of the Borrower and its Subsidiaries ending on31 December.

 

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

 

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

 

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

 

(c)                                  the aggregate amount of all investments inForeign Subsidiaries (valued as of the initial date of such investment withoutregard to any subsequent changes in value thereof) made after the date of thisAgreement and prior to such date of determination pursuant toClause 22.3(a)(ii)(B) (*Limitations on Loans,Investments and Acquisitions*); *less*

 

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

 

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

 

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

 

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

 

shall be excluded from the determination ofthe Foreign Investment Limitation.

 

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

 

“**French Authorities**”means the “*Direction Générale du Trésor et de la PolitiqueEconomiques (DGTPE)*” of the French Ministry of Finance, anysuccessors thereto, or any other Governmental Authority in or of Franceinvolved in the provision, management or regulation of the terms, conditionsand issuance of export credits including, among others, such entities to whomauthority in respect of the extension or administration of export financingmatters have been delegated, such as COFACE.

 

“**FrenchSecurity Documents**” has the meaning given to such term at Clause28.2(a)(i) (*Appointment of the SecurityAgent (France)*).

 

“**GAAP**” meansgenerally accepted accounting principles, as recognised by the AmericanInstitute of Certified Public Accountants and the Financial AccountingStandards Board, consistently applied and maintained on a consistent basis forthe 

 

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

 

“**Governmental Approvals**”means all authorisations, consents, approvals, permits, licences and exemptionsof, registrations and filings with, and reports to, all GovernmentalAuthorities.

 

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

 

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

 

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

 

“**Guarantee Agreement**” means:

 

(a)                                  theguarantee agreement dated prior to Financial Close between the Security Agentand each Subsidiary Guarantor set out in Schedule 26 (*SubsidiaryGuarantors*); and

 

(b)                                 eachguarantee agreement (to be in substantially the same form as the guarantee agreementreferred to in paragraph (a) above) to be entered into by a SubsidiaryGuarantor in accordance with Clause 21.5 (*AdditionalDomestic Subsidiaries*).

 

“**Guarantee Obligations**” means, withrespect to the Borrower and its Subsidiaries, without duplication, anyobligation, contingent or otherwise, of any such person pursuant to which suchperson has directly or indirectly guaranteed any Financial Indebtedness of anyother person and, without limiting the generality of the foregoing, anyobligation, direct or indirect, contingent or otherwise, of any such person:

 

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

 

(b)                                 enteredinto for the purpose of assuring in any other manner the obligee of suchFinancial Indebtedness of the payment thereof or to protect such obligeeagainst loss in respect thereof (in whole or in part),

 

*provided**that*, the term Guarantee Obligation shall not includeendorsements for collection or deposit in the ordinary course of trading.  The amount of any Guarantee Obligation shallbe deemed equal to the lesser of the stated or determinable amount of theprimary obligation or the maximum liability of the person giving the GuaranteeObligation.

 

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“**Hazardous Materials**” means any substances or materials:

 

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

 

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

 

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

 

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

 

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

 

(f)                                    which consist of underground or aboveground storage tanks, whether empty, filled or partially filled with anysubstance; or

 

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

 

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

 

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

 

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

 

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

 

“**Incapacity**” means absence of the legal right to enter intobinding contractual relations (other than pursuant to a civil or criminalsanction (including without limitation, personal bankruptcy or analogousproceedings)).

 

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

 

(a)                                  therelevant Satellite has reached its final altitude;

 

(b)                                 therelevant Satellite is fully operational and properly integrated into theconstellation;

 

(c)                                  thetesting of the relevant Satellite has been completed and the Borrower hasprovided to the COFACE Agent a certificate signed by a Responsible Officercertifying that the Borrower has delivered to its relevant insurer aconfirmation that the Satellite Performance Criteria has been successfully metin respect of the relevant Satellite (and attaching a copy of such confirmationto such certificate); and

 

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

 

as certified by theBorrower in accordance with Clause 19.10 (*IndividualIn-Orbit Acceptance*).

 

“**Initial Equity**” means the equity contributed by Thermo (orany other third party) pursuant to paragraph 11 (*EquityContribution*) of Schedule 2 (*Conditions Precedent*)or issued to Thermo pursuant to paragraph 10 (*Equity/SubordinatedDebt*) of Schedule 2 (*Conditions Precedent*).

 

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

 

“**Insurances**” means the insurances required byClause 21.4 (*Insurance*).

 

“**Insurance Consultant**” means Jardine Lloyd Thompson Limited.

 

“**Insurance Proceeds Account**” has the meaning given to suchterm in the Accounts Agreement.

 

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

 

“**Interest Period**” means:

 

(a)                                  inrelation to a Loan, each period determined in accordance with Clause 9 (*InterestPeriods*); and

 

(b)                                 inrelation to an Unpaid Sum, each period determined in accordance withClause 8.3 (*DefaultInterest*).

 

“**Interest Rate CapAgreement**” means each interest rate cap agreement to be entered intoby the Borrower and the Original Lenders which shall (without limitation)provide that monies payable to the Borrower under such agreements are paiddirectly to the Debt Service Account.

 

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

 

“**Invoice**” meansany invoice or demand for payment issued by the Supplier and/or the LaunchServices Provider pursuant to the Satellite Construction Contract and/or LaunchServices Contract, as the case may be.

 

“**Landlord Waiver and Consent Agreements**” means:

 

(a)                                  the landlord waiver and consent agreementmade between Four Sierra, LLC aslandlord and the Security Agent;

 

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

 

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

 

(d)                                 any other agreementor document which the Security Agent and the Borrower (acting reasonably) fromtime to time designate as a “*Landlord Waiver andConsent Agreement*” for the purposes of this Agreement,

 

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

 

“**Launch**” meansthe disconnection of the lift-off plug of the SOYUZ launch vehicle, if suchevent follows the ignition of the first (strap-on boosters) and second (corestage) stage liquid engines of the launch vehicle.

 

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

 

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

 

“**LaunchInsurance Documentation**” has the meaning given to such term atClause 21.4(c)(ii) (*Launch Insurance*).

 

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

 

“**Launch Services Provider**” means Arianespace, a French *sociétéanonyme* registered at the *Registredu Commerce et des**Société of Evry* under registrationnumber 318 516 457, whose registered office is at Boulevard de l’Europe,91006 Evry, France.

 

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“**Lender**” means:

 

(a)                                  any Original Lender; and

 

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

 

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

 

“**LIBOR**” means, in relation to any Loan:

 

(a)                                  the applicable Screen Rate; or

 

(b)                                 (if no Screen Rate is available for Dollarsfor the Interest Period of that Loan) the arithmetic mean of the rates (roundedupwards to four (4) decimal places) as supplied to the COFACE Agentat its request quoted by the Reference Banks to leading banks in the Londoninterbank market,

 

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

 

#### (i)                                     aperiod shorter than one (1) Month, the reference shall be one (1) Month;or

####  

#### (ii)                                  aperiod longer than one (1) Month and which does not correspond to an exactnumber of Months, the relevant rate shall be determined by using a linearinterpolation of the LIBOR according to usual practice in the internationalmonetary market.

####  

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

 

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

 

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

 

(a)                                  the CapitalExpenditure Account;

 

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(b)                                 the BorrowerContingent Equity Account;

 

(c)                                  the Convertible NoteReserve Account;

 

(d)                                 the Debt ServiceReserve Account; and

 

(e)                                  the InsuranceProceeds Account.

 

“**Loans**” means:

 

(a)                                  a Facility A Loan; and

 

(b)                                 a Facility B Loan,

 

and, “**Loan**” means eitherof the foregoing as the context requires.

 

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

 

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

 

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

 

“**Majority Lenders**” means:

 

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

 

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

 

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

 

“**Material Adverse Effect**”****means withrespect to the Borrower or any of its Subsidiaries, a material adverse effecton:

 

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

 

(b)                                 thelegality, validity or enforceability of any provision of any TransactionDocument; or

 

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

 

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

 

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

 

*providedthat*, existing and future first-generation satelliteconstellation degradation or failure issues and the effects thereof (which, forthe avoidance of doubt, shall exclude any Satellite delivered under theSatellite Construction Contract) on the Borrower and its Subsidiaries, takenindividually or collectively, shall not constitute a Material Adverse Effect.

 

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

 

“**Material Contract**”means:

 

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

 

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

 

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

 

“**Material Subsidiary**”means:

 

(a)                                  the Borrower;

 

(b)                                 each SubsidiaryGuarantor;

 

(c)                                  Globalstar Canada Satellite Co.;

 

(d)                                 each Licence Subsidiary (including, GCLLicensee LLC);

 

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

 

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

 

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

 

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

 

(i)                                     subject to paragraph (ii) below:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(v)                                 a Subsidiary of the Borrower (if it is notalready a Material Subsidiary) will become a Material Subsidiary on completionof any other intra-Group transfer or reorganisation if it would have been aMaterial Subsidiary had the intra-Group transfer or reorganisation occurred onthe date of the latest relevant financial statements; and

 

(vi)                              except as specifically mentioned inparagraph (iv) above, a member of the Group will remain a MaterialSubsidiary until the next relevant financial statements show otherwise underparagraph (i) above.

 

If there is a dispute as to whether or nota member of the Group is a Material Subsidiary, a determination by the COFACEAgent will be, in the absence of manifest error, conclusive.

 

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

 

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“**Month**” means aperiod starting on one day in a calendar month and ending on the numericallycorresponding day in the next calendar month, except that:

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Net Cash Proceeds**”means, as applicable:

 

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

 

(b)                                 with respect to any Insurance andCondemnation Event, the gross cash proceeds received by the Borrower or any ofits Subsidiaries *less* the sum of:

 

(i)            all fees and expenses inconnection therewith; and

 

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

 

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

 

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

 

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

 

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

 

(b)                                 all Hedging Obligations; and

 

(c)                                  all other fees and commissions (includingattorneys’ fees), charges, indebtedness, loans, liabilities, financialaccommodations, obligations, covenants and duties owing by the Borrower or anyof its Subsidiaries to the Finance Parties, in each case under any Finance Documentsor otherwise, with respect to any Loan direct or indirect, absolute orcontingent, due or to become due, contractual or tortuous, liquidated orunliquidated, and whether or not evidenced by any note.

 

“**Obligors**”means:

 

(a)                                  the Borrower;

 

(b)                                 Thermo; and

 

(c)                                  each Subsidiary Guarantor,

 

and, “**Obligor**” meansany of the foregoing as the context requires.

 

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

 

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

 

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

 

“**Operating Lease**”means, as to any person as determined in accordance with GAAP, any lease ofproperty (whether real, personal or mixed) by such person as lessee which isnot a Capital Lease.

 

“**OriginalLenders**” has the meaning given to such term in the recitals.

 

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

 

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“**Party**” means aparty to this Agreement.

 

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

 

“**PBGC**” means thePension Benefit Guaranty Corporation or any successor agency.

 

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

 

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

 

(a)                                  no less than fifteen (15) days priorto the proposed closing date of such acquisition, the Borrower shall havedelivered written notice and financial details of such acquisition to theCOFACE Agent, which notice shall include the proposed closing date of suchacquisition;

 

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

 

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

 

(d)                                 if such proposed transaction is a mergerwith respect to the Borrower or any Subsidiary Guarantor, the Borrower shallhave received the prior written consent of the COFACE Agent to suchtransaction;

 

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

 

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

 

(i)                                     such proposed transaction:

 

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

 

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

 

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*provided that*, the Borrower shall only bepermitted to enter into two (2) transactions of the type described in thisparagraph (f)(i) in each Fiscal Year; or

 

(ii)                                  the relevant Target Company (other than aninternational gateway operator) has for the twelve (12) Month period priorto the date of the proposed transaction a negative Adjusted Consolidated EBITDAno greater than two million Dollars (US$2,000,000) in aggregate when takinginto account all other acquisitions with negative Adjusted Consolidated EBITDAmade following the date of this Agreement.

 

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

 

(A)          any reference to “*the Borrower and its Subsidiaries*” in thedefinitions of Consolidated EBITDA, Consolidated Net Income, Equity Issuance,Subordinated Indebtedness, Capital Interest Expense and Capital Lease (and anyother definition used in the calculation of Adjusted Consolidated EBITDA) shallbe construed as being a reference to “*theTarget Company and its Subsidiaries*”;

 

(B)           any reference to “*the Borrower*” in the definitions ofConsolidated EBITDA, Consolidated Net Income, Equity Issuance, SubordinatedIndebtedness, Capital Interest Expense and Capital Lease (and any otherdefinition used in the calculation of Adjusted Consolidated EBITDA) shall beconstrued as being a reference to “*theTarget Company*”; and

 

(C)           any reference to “*Subsidiary*” in the definitions ofConsolidated EBITDA, Consolidated Net Income, Equity Issuance, SubordinatedIndebtedness, Capital Interest Expense and Capital Lease (and any otherdefinition used in the calculation of Adjusted Consolidated EBITDA) shall beconstrued as being a reference to a Subsidiary of a Target Company;

 

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

 

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

 

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

 

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

 

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“**Permitted Joint VentureInvestments**” means any investment by the Borrower, any SubsidiaryGuarantor or Globalstar Canada Satellite Co. in joint ventures and partnershipsif each such investment meets all of the following requirements:

 

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

 

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

 

(c)                                  the Borrower shall havedelivered to the COFACE Agent:

 

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

 

(ii)           forward looking financialstatements taking into account the proposed transaction and demonstrating tothe satisfaction of the COFACE Agent, compliance with each of the financialcovenants set out in Clause 20 (*Financial covenants*)on the proposed closing date of such investment and on a twelve (12) Monthprojected basis;

 

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

 

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

 

(f)                                    the Borrower shall have obtained the priorwritten consent of the COFACE Agent and the Majority Lenders prior to theconsummation of such investment if the amount (including all cash and non-cashconsideration paid by or on behalf of the Borrower and its Subsidiaries inconnection with such investment) of such investment (or series of relatedinvestments), together with all other investments in joint ventures andpartnerships consummated during the term of this Agreement, exceeds thirtymillion Dollars (US$30,000,000) in aggregate (excluding any portion of suchinvestment consisting of Capital Stock of the Borrower).

 

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

 

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

 

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

 

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

 

“**Project**” means:

 

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

 

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

 

to form for the Borrower the secondgeneration satellite constellation.

 

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

 

“**Promissory Notes**”means a promissory note made by the Borrower in favour of the Lendersevidencing the portion of the Loan made by such Lender in accordance withClause 31.2 (*Evidence of Financial Indebtedness*),substantially in the form of Schedule 25 (*Form of PromissoryNote*)and any amendments, supplements and modifications thereto, any substitutestherefor, and any replacements, restatements, renewals or extension thereof, inwhole or in part.

 

“**Property All RisksInsurance**” means the insurance to be procured by the Borrower inaccordance with Clause 21.4(c)(i) (*Insurance*).

 

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

 

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

 

“**Qualifying Lender**”means a Lender which is either:

 

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

 

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

 

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

 

(d)                                 entitled to the benefit of the “*portfolio interest*” exemption under Section 871(h) or881(c) of the Code.

 

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

 

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

 

“**Relevant Agreements**” means:

 

(a)                                  theSupplier Guarantee; and

 

(b)                                 eachCash Contribution Agreement.

 

“**Relevant Funds**” has the meaning given tosuch term at Clause 22.14(a)(iii) (*Excess CashFlow / Purchase of Satellites*).

 

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

 

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

 

### “**Repayment Schedule**” means the repayment schedule set out atSchedule 29 (*Repayment Schedule*).

###  

“**Repeating Representations**” means each of the representationsset out in Clauses 18.1 (*Status*), 18.2 (*Binding Obligations*), 18.3 (*Non-Conflictwith other Obligations*), 18.4 (*Power andAuthority*), 18.6 (*Authorisations*), 18.10 (*MarginStock*), 18.11 (*Government Regulation*),18.13 (*EmployeeRelations*), 18.14 (*Burdensome Provisions*),18.18 (*Titlesto Properties*), 18.23(a) (*Satellites*),18.26 (*OFAC*),18.27 (*GoverningLaw and Enforcement*), 18.31 (*NoMisleading Information*) and 18.33 (*NoImmunity*).

 

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“**Reservations**” means:

 

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

 

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

 

(c)                                  the time barring of claims under applicablestatutes of limitation;

 

(d)                                 the possibility that an undertaking toassume liability for or indemnify a person against non-payment of stamp dutymay be void;

 

(e)                                  defences of set-off or counterclaim;

 

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

 

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

 

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

 

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

 

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

 

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

 

“**S&P**” meansStandard & Poor’s Rating Services, a division of The McGraw-HillCompanies, Inc. and any successor thereto.

 

“**Sanctioned Entity**” means:

 

(a)                                  an agency of the government of;

 

(b)                                 an organisation directly or indirectlycontrolled by; or

 

(c)                                  a person resident in a country,

 

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

 

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

 

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

 

“**Satellite**”shall mean any single non-geostationary satellite, or group of substantiallyidentical non-geostationary satellites, delivered or to be delivered by theSupplier to the Borrower pursuant to the Satellite Construction Contract andowned by, leased to or for which a contract to purchase has been entered intoby, the Borrower or any of its Subsidiaries, whether such satellite is in theprocess of manufacture, has been delivered for Launch or is in orbit (whetheror not in operational service).

 

“**Satellite ConstructionContract**” means the satellite construction contract dated 30 November 2006and made between the Borrower and the Supplier for the construction of fortyeight (48) satellites, as amended and supplemented from time to time (and asfurther amended and restated on or about the date hereof and delivered insatisfaction of the condition precedent set out at paragraph 7 (*Commercial Contracts*) of Schedule 2 (*ConditionsPrecedent*)) for the purpose of, among other things, detailing a newphasing of the contract for the firsttwenty five (25) satellites and a final phase oftwenty three (23) satellites.

 

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

 

“**Satellite Vendor Obligations**” means the obligations of theBorrower or any of its Subsidiaries to any Satellite or Satellite launch vendoror Affiliate thereof for the procurement, construction, launch and insurance ofall or part of one or more Satellites or Satellite launches for such Satellitesor a ground or in orbit space intended for future use or associatedimprovements to the ground portion of the network of the Borrower and itsSubsidiaries, *provided that* such obligations:

 

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

 

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

 

“**Scheduled Launch Period**”means the three (3) Month contractual period during which aSatellite is scheduled to be launched in accordance with the Launch ServicesContract.

 

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

 

40

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“**Security Documents**” means:

 

(a)                                  theCollateral Agreement;

 

(b)           each Mortgage;

 

(c)                                  theBorrower Pledge of Bank Accounts;

 

(d)                                 eachAccount Control Agreement;

 

(e)                                  theStock Pledge Agreement;

 

(f)                                    eachLandlord Waiver and Consent Agreement;

 

(g)                                 eachDelegation Agreement;

 

(h)                                 theThermo Pledge of Bank Account;

 

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

 

(j)                                     allagreements and other documents executed from time to time pursuant to any ofthe foregoing; and

 

(k)                                  anyother agreement or document which the Security Agent and the Borrower (actingreasonably) from time to time designate as a “*SecurityDocument*” for the purposes of this Agreement,

 

and, “**Security Document**” means any of the foregoing as the contextrequires.

 

“**Shareholder Distributions**” means:

 

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

 

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

 

(c)                                  any payment of cash interest or capitalisedinterest by the Borrower to Thermo under the Thermo Cash Contribution Agreementor any other distribution (whether in cash or in kind), including, withoutlimitation, any distribution of assets or other payment whatsoever in respectof share capital whether directly or indirectly but excluding any distributionsor other payments pursuant to any employee stock incentive plan (howsoeverdescribed) expressly permitted under the terms of this Agreement;

 

(d)                                 any redemption, cancellation or repurchaseof the Borrower’s shares or any class of its shares other than any conversionon mandatory repurchase or redemption of the Convertible Notes in accordancewith their terms or in 

 

41

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connectionwith any employee stock incentive plan (howsoever described) expresslypermitted under the terms of this Agreement; and

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Stock Pledge Agreement**”means the stock pledge agreement substantially in the form agreed between theBorrower and the Security Agent on the date of this Agreement (or as otherwisesatisfactory to the Security Agent) between the Borrower, each DomesticSubsidiary and the Security Agent.

 

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

 

(a)                                  subordinatedin right and time of payment to the Obligations pursuant to an AcceptableIntercreditor Agreement (*provided that*the Borrower shall be entitled to pay PIK Interest);

 

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

 

(i)                                     financingcosts directly arising from the construction and Launch of the Satellites oradditional satellites;

 

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

 

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

 

(c)                                  containingsuch other terms and conditions, in each case as are reasonably satisfactory tothe COFACE Agent; and

 

42

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(d)                                 theissuance of such Financial Indebtedness shall not cause, and could notreasonably be expected to cause, a Default.

 

“**Subordination Deed**” means the subordination deed dated on orabout the date of this Agreement and made between Thermo, the Borrower, theSecurity Agent and the COFACE Agent.

 

“**Subsidiary**” means, as to any person, of which more thanfifty *per cent.***(50%)of the outstanding Capital Stock having ordinary voting power to elect amajority of the board of directors or other managers of such person is at thetime owned by or the management is otherwise controlled by such person(irrespective of whether, at the time, Capital Stock of any other class orclasses of such person shall have or might have voting power by reason of theoccurrence of any contingency).  Unlessotherwise qualified, references to “**Subsidiary**” or “**Subsidiaries**” in this Agreement shall refer to those of theBorrower.

 

“**Subsidiary Guarantor**” means:

 

(a)                                  eachdirect or indirect Domestic Subsidiary of the Borrower in existence on the dateof this Agreement and set out in Schedule 26 (*SubsidiaryGuarantors*); or

 

(b)                                 whichbecomes a party to a Guarantee Agreement pursuant to Clause 21.5 (*AdditionalDomestic Subsidiaries*).

 

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

 

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

 

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

 

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

 

“**Target Company**” has the meaning given tosuch term in the definition of “*PermittedAcquisition*”.

 

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

 

43

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

 

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

 

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

 

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

 

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

 

(a)                                  for any date on or after such HedgingAgreements have been closed out and termination value(s) determined inaccordance therewith, such termination value(s); and

 

(b)                                 for any date prior to the date referencedin paragraph (a), the amount(s) determined as the mark-to-marketvalue(s) for such Hedging Agreements, as determined based upon one (1) ormore mid-market or other readily available quotations provided by anyrecognised dealer in such Hedging Agreements (which may include a Lender or anAffiliate of a Lender).

 

“**Thermo**” means Thermo Funding Company LLC.

 

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

 

“**Thermo Group**” means:

 

(a)                                  GlobalstarSatellite, L.P.;

 

(b)                                 Thermo;and

 

(c)                                  GlobalstarHoldings, LLC.

 

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

 

“**Thermo Pledge of Bank Accounts**” means the French law “*Conventionde Nantissement de Comptes Bancaires*” substantially in the formagreed between Thermo and the Security Agent on the date of this Agreement (oras otherwise satisfactory to the Security Agent) between Thermo, the OffshoreAccount Bank and the Security Agent.

 

44

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“**Total Commitments**” means the aggregate of:

 

(a)                                  the Total Facility A Commitments; and

 

(b)                                 the Total Facility B Commitments.

 

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

 

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

 

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

 

“**Transaction Documents**” means:

 

(a)                                  each Finance Document;

 

(b)                                 eachCommercial Contract;

 

(c)                                  eachCash Contribution Agreement;

 

(d)                                 theThermo Cash Contribution Agreement;

 

(e)                                  anyAcceptable Intercreditor Agreement; and

 

(f)                                    eachMaterial Communications Licence,

 

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

 

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

 

“**Transfer Date**” means, in relation to a transfer, the laterof:

 

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

 

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

 

“**UCC**” means theUniform Commercial Code as in effect in the State of New York, as amendedor modified from time to time.

 

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

 

45

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

 

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

 

“**United States**” or “**US**” means the United Statesof America.

 

“**Utilisation**”means a utilisation of a Facility.

 

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

 

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

 

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

 

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

 

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

 

“**WorkingCapital**” means, on any date, Current Assets *less* Current Liabilities.

 

## **1.2**                                Construction

## ** **

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

###  

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

####  

#### (ii)                                  “**assets**” includes present and futureproperties, revenues and rights of every description;

####  

#### (iii)                               “**determines**” or “**determined**” means a determination made in the absolutediscretion of the person making the determination;

 

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#### (iv)                              the “**equivalent**” on any given date in onecurrency (the “**first currency**”) ofan amount denominated in another currency (the “**second currency**”) is a reference to the amount of the firstcurrency which could be purchased with the second currency at the Spot Rate ofExchange for the purchase of the first currency with the second currency;

####  

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

####  

#### (vi)                              “**guarantee**” means any guarantee, letter ofcredit, bond, indemnity or similar assurance against loss, or any obligation,direct or indirect, actual or contingent, to purchase or assume anyindebtedness of any person or to make an investment in or loan to any person orto purchase assets of any person where, in each case, such obligation isassumed in order to maintain or assist the ability of such person to meet itsindebtedness;

####  

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

####  

#### (viii)                        “**indebtedness**” includes any obligation(whether incurred as principal or as surety) for the payment or repayment ofmoney, whether present or future, actual or contingent;

####  

#### (ix)                                a “**person**” includes any individual, firm,company, corporation, government, state or agency of a state or anyassociation, trust, joint venture, consortium or partnership (whether or nothaving separate legal personality);

####  

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

####  

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

####  

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

####  

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

###  

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

###  

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

 

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## **1.3**                                AccountingTerms

## ** **

All accounting terms not specifically orcompletely defined in this Agreement shall be construed in conformity with, andall financial data (including financial ratios and other financialcalculations) required to be submitted pursuant to this Agreement shall beprepared in conformity with, GAAP applied on a consistent basis, as in effectfrom time to time, applied in a manner consistent with that used in preparingthe audited financial statements required by Clause 19.2 (*Annual Financial Statements*), except as otherwisespecifically prescribed in this Agreement.

 

## **1.4**                                UCCTerms

## ** **

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

 

## **1.5**                                ThirdParty Rights

## ** **

### (a)                                  Unlessexpressly provided to the contrary in a Finance Document a person who is not aParty has no right under the Contracts (Rights of Third Parties) Act 1999(the “**Third Parties Act**”) toenforce or to enjoy the benefit of any term of this Agreement.

###  

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

###  

# **2.**                                      THE FACILITIES

# ** **

## **2.1**                                Facility Aand Facility B

## ** **

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

 

### (a)                                  Dollarterm loan facility in an aggregate amount equal to the Total Facility ACommitments (“**Facility A**”); and

###  

### (b)                                 Dollarterm loan facility in an aggregate amount equal to the Total Facility BCommitments (“**Facility B**”).

###  

## **2.2**                                FinanceParties’ Rights and Obligations

## ** **

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

###  

### (b)                                 Theobligations of each Lender under the Finance Documents are joint andseveral.  Each Party agrees that thisClause 2.2(b) is for the benefit of the

 

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###  

### Lenders only and theBorrower acknowledges that it has no rights of any kind whatsoever under thisClause 2.2(b).

###  

### (c)                                  Therights of each Finance Party under or in connection with the Finance Documentsare separate and independent rights and any debt arising under the FinanceDocuments to a Finance Party from an Obligor shall be a separate andindependent debt.

###  

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

###  

## **2.3**                                CommercialContracts

## ** **

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

 

# **3.**                                      PURPOSE

# ** **

## **3.1**                                Purpose— Facility A

## ** **

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

 

### (a)                                  **Payments to the Supplier**

###  

payment to the Supplier of the EligibleAmounts in excess of such amounts already paid by the Borrower to theSupplier.  Such Eligible Amount shall bepayable by way of direct disbursement to the Supplier in accordance with theterms of the Satellite Construction Contract;

 

### (b)                                 **Reimbursement to the Borrower**

###  

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

 

#### (i)                                     towardspayment to the Launch Services Provider of amounts not funded byFacility B in an amount not exceeding two hundred and sixteen millionDollars (US$216,000,000);

####  

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

####  

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

 

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#### (iv)                              towardspayment of the Borrower’s working capital and general corporate purposes in anamount not exceeding one hundred and fifty million Dollars (US$150,000,000),

####  

and, in each case, such additional amountsas COFACE may agree; and

 

### (c)                                  **Payment of the COFACE Insurance Premia**

###  

payment to the COFACE Agent (for theaccount of COFACE) of an amount equal to one hundred *per cent.***(100%) of theCOFACE Insurance Premia with respect to Facility A, being the amount specifiedby COFACE,

 

in each case, in accordance with the termsof this Agreement.

 

## **3.2**                                Purpose— Facility B

## ** **

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

 

### (a)                                  **Payments to the Launch Services Provider**

###  

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

 

### (b)                                 **Payment of the COFACE Insurance Premia**

###  

payment to the COFACE Agent (for theaccount of COFACE) of an amount equal to one hundred *per cent.***(100%) of theCOFACE Insurance Premia with respect to Facility B, being the amount specifiedby COFACE,

 

in each case, in accordance with the termsof this Agreement.

 

## **3.3**                                Monitoring

## ** **

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

 

## **3.4**                                Sub-Limits

## ** **

The aggregateamount that the Borrower may utilise under:

 

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

###  

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

###  

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

###  

### 50

### 

###  

# **4.**                                      CONDITIONS OF UTILISATION

# ** **

## **4.1**                                InitialConditions Precedent

## ** **

The Borrower shall not deliver aUtilisation Request unless the COFACE Agent has received all of the documentsand other evidence listed in Schedule 2 (*ConditionsPrecedent*) in form and substance satisfactory to the COFACEAgent.  The COFACE Agent shall notify theBorrower and the Lenders promptly upon being so satisfied.

 

## **4.2**                                FurtherConditions Precedent

## ** **

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

 

### (a)                                  noDefault is continuing or would be likely to result from the proposed Loan;

###  

### (b)                                 theRepeating Representations to be made by the Borrower are true in all materialrespects;

###  

### (c)                                  thecredit insurance cover under the COFACE Insurance Policy extended by COFACE infavour of the Lenders in respect of each Facility is in full force and effectand has not been suspended or cancelled, and the COFACE Agent shall, in itssole discretion, be satisfied that all conditions of the COFACE InsurancePolicy and of the credit insurance cover with respect to such COFACE InsurancePolicy have been satisfied in full and that the credit insurance coverage willapply to such Utilisation;

###  

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

###  

### (e)                                  forany Utilisation Request made for the purpose referred to in Clause 3.1(b) (*Reimbursement to the Borrower*), the COFACE Agent shall havereceived evidence that the payment to the Supplier of the correspondingInvoices has been made;

###  

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

###  

### (g)                                 theBorrower shall have paid or arranged for payment when due:

###  

#### (i)                                     allfees, costs, expenses, charges and other amounts due and payable by it underthis Agreement on the Utilisation Date for such Utilisation; and

####  

#### 51

#### 

####  

#### (ii)                                  anyand all other amounts due and payable under this Agreement on such UtilisationDate; the Borrower shall have delivered to the COFACE Agent such evidence ofpayment as the COFACE Agent may reasonably request; and

####  

### (h)                                 inrespect of any payment to the Supplier, the Launch Services Provider and/or theBorrower in accordance with Clause 3.1(a) (*Payments tothe Supplier*), 3.1(b) (*Reimbursement to theBorrower*) and 3.2(a) (*Payments to the LaunchServices Provider*), the Supplier and/or the Launch Services Provider(as the case may be) has delivered to the COFACE Agent a QualifyingCertificate, which:

###  

#### (i)                                     conformsto the amount and payment timing specified in the relevant Utilisation Request;and

####  

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

####  

##### (A)                              of aportion of the Contract Price directly to the Supplier or the Launch ServicesProvider (as the case may be); or

#####  

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

#####  

### (i)                                     acertificate from a Responsible Officer certifying that each of the eight (8) Satellitesreferred to in Schedule 16 (*Satellites*) hasbeen launched, is in-service and is fully operational (in form and substancesatisfactory to the COFACE Agent); and

###  

### (j)                                     theconditions in Clause 5 (*Utilisation*)have been fulfilled.

###  

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

###  

## **4.3**                                ConditionsPrecedent to Certain Utilisations

## ** **

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

 

### (a)                                  nolater than one hundred and twenty (120) days prior to the first day of theScheduled Launch Period, the COFACE Agent shall have received the drafts of theLaunch Insurance Documentation, in compliance with the provisions ofClause 21.4 (*Insurance*) and in form andsubstance satisfactory to the COFACE Agent; and

###  

### (b)                                 nolater than ninety (90) days prior to each scheduled Launch date, theBorrower shall have delivered to the COFACE Agent the Launch InsuranceDocumentation duly executed by each party thereto together with:

###  

#### (i)                                     theLoss Payee Clause;

####  

#### 52

#### 

####  

#### (ii)                                  eachcertificate in respect of the Launch Insurance Documentation referred to inClause 21.4(c)(ii) (*Launch Insurance*);and

####  

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

####  

## **4.4**                                Failureto Satisfy Conditions Precedent

## ** **

### (a)                                  TheBorrower agrees that all the initial conditions precedent referred to inClause 4.1 (*Initial Conditions Precedent*)must be fulfilled within sixty (60) days of the date of this Agreement.

###  

### (b)                                 Subjectto paragraph (c) below, if the Borrower is unable to fulfil any suchconditions precedent within such sixty (60) day time period, each Lender’sCommitment shall be immediately cancelled and each Lender shall have no furtherobligations under this Agreement.

###  

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

###  

# **5.**                                      UTILISATION

# ** **

## **5.1**                                Deliveryof a Utilisation Request

## ** **

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

###  

### (b)                                 EachUtilisation Request shall instruct the COFACE Agent to remit the amountutilised on behalf of the Borrower to:

###  

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

####  

#### (ii)                                  inrelation to a reimbursement to the Borrower under Facility A, such account asdirected by the Borrower in the Utilisation Request.

####  

## **5.2**                                Borrower’sMandate

## ** **

### (a)                                  TheBorrower irrevocably authorises and mandates the COFACE Agent (on its behalfand for its account):

###  

#### (i)                                     inthe case of Facility A:

####  

##### (A)                              topay the Supplier with respect to any Eligible Amount under the SatelliteConstruction Contract, upon presentation of the 

#####  

##### 53

##### 

#####  

##### documents set out inSchedule 11 (*Payment Terms*);

#####  

##### (B)                                toreimburse the Borrower for any payments in respect of Eligible Goods andServices under the Satellite Construction Contract which exceed fifteen *per cent.* (15%) of the SatelliteConstruction Contract’s Contract Price; and

#####  

##### (C)                                topay to the COFACE Agent the COFACE Insurance Premia;

#####  

#### (ii)                                  inthe case of Facility B:

####  

##### (A)                              topay the Launch Services Provider with respect to any Eligible Amount under theLaunch Services Contract, upon presentation of the documents set out inSchedule 11 (*Payment Terms*); and

#####  

##### (B)                                topay to the COFACE Agent the COFACE Insurance Premia.

#####  

### (b)                                 Thismandate is irrevocable.

###  

### (c)                                  Thepayment terms set out in Schedule 11 (*Payment Terms*)may only be amended with the prior written consent of the COFACE Agent (actingon the instructions of all the Lenders).

###  

### (d)                                 TheBorrower agrees that any Utilisation made under or pursuant to thisClause 5 shall be deemed to have been made to or for the benefit of theBorrower and the Borrower waives all rights of protest it may have to thecontrary.

###  

## **5.3**                                Examinationof Documents

## ** **

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

###  

### (b)                                 TheCOFACE Agent and the Lenders shall not be responsible for any delay in makingavailable any Loans resulting from any requirement for the delivery of furtherinformation or documents required by the COFACE Agent to confirm the relevantconditions precedent in this Agreement have been met.

###  

### 54

### 

###  

## **5.4**                                Completionof a Utilisation Request

## ** **

### (a)                                  EachUtilisation Request is irrevocable and will not be regarded as having been dulycompleted unless:

###  

#### (i)                                     theproposed Utilisation Date is a Business Day within the Availability Periodapplicable to that Facility; and

####  

#### (ii)                                  thecurrency and amount of the Utilisation comply with Clause 5.5 (*Currency and Amount*).

####  

### (b)                                 Onlyone (1) Loan may be requested in each Utilisation Request.

###  

### (c)                                  TheBorrower may only deliver one (1) Utilisation Request in each Monthin respect of each Facility.

###  

## **5.5**                                Currencyand Amount

## ** **

In the caseof:

 

### (a)                                  **Payments to the Supplier**

###  

any Utilisation to be made in accordance withClause 3.1(a) (*Payments to the Supplier*),the Loan requested in a Utilisation Request must be in Dollars.  Each payment to the Supplier by the COFACEAgent shall be made in Dollars;

 

### (b)                                 **Payments to the Launch Services Provider**

###  

any Utilisation to be made in accordancewith Clause 3.2(a) (*Payments to the LaunchServices Provider*), the Loan requested in a Utilisation Request mustbe Dollars.  Each payment to the LaunchServices Provider by the COFACE Agent shall be made in Dollars;

 

### (c)                                  **Reimbursement to the Borrower**

###  

any Utilisation to be made in accordancewith Clause 3.1(b) (*Reimbursement tothe Borrower*), the Loan requested in a Utilisation Request must beDollars.  The Borrower shall confirm ineach such Utilisation Request that the requested Dollar amount is the Dollarequivalent of the relevant Euro amount applying a Euro to Dollar exchange rateof one (1) Euro for one point thirty four Dollars (US$1.34).  Each Utilisation made pursuant to Clause 3.1(b) (*Reimbursement to the Borrower*) shall bemade in Dollars;

 

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

###  

any Utilisation to be made in accordancewith Clause 3.1(c) (*Payment of the COFACEInsurance Premia*), the Loan requested in a Utilisation Request mustbe, subject to Clause 12.3 (*Borrower’s PaymentObligations*), thirty five million two hundred seventy two thousandtwo hundred and seventy six Dollars (US$35,272,276). Any payment to COFACE ofthe COFACE Insurance Premia shall be made in Dollars;

 

55

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

###  

any Utilisation to be made in accordancewith Clause 3.2(b) (*Payment of the COFACEInsurance Premia*), the Loan requested in a Utilisation Request mustbe, subject to Clause 12.3(c) (*Borrower’s PaymentObligations*), one million four hundred forty two thousand eighthundred and eighty thousand Dollars (US$1,442,880).  Any payment to COFACE of the COFACE InsurancePremia shall be made in Dollars;

 

### (f)                                    **Facility A — Minimum Amount**

###  

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

 

### (g)                                 **Facility B — Minimum Amount**

###  

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

 

## **5.6**                                Lenders’Participation

## ** **

### (a)                                  Ifthe conditions set out in this Agreement have been met, each Lender shall makeits participation in each Loan available by the Utilisation Date through itsFacility Office.

###  

### (b)                                 Theamount of each Lender’s participation in each Loan will be equal to theproportion borne by its Available Commitment to the Available Facilityimmediately prior to making the Loan.

###  

### (c)                                  TheCOFACE Agent shall notify each Lender of the amount of each Loan and the amountof its participation in that Loan by 11:00 a.m.**(Paristime) on a Business Day which is seven**(7) BusinessDays prior to the proposed Utilisation Date for such Utilisation.

###  

## **5.7**                                Cancellationof Commitment

## ** **

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

 

# **6.**                                      REPAYMENT

# ** **

## **6.1**                                Repayment

## ** **

### (a)                                  ****The Borrower shall make such repayments as may benecessary to ensure that on each of the dates set out in the Repayment Schedule(each a “********Repayment Date********”)the aggregate amount of the Loans is reduced by an amount equal to the productof the aggregate amount of the Loans as at the close of business in Paris onthe last day of the Availability Period and the percentage (as set out next tothe relevant Repayment Date) in the Repayment Schedule which corresponds tosuch Repayment Date.  Notwithstandinganything to the****

### **** ****

### ****56****

### 

### **** ****

### ****contrary in Clause 6.1(b) below, alloutstanding Loans will in any event be repaid in full by the Borrower by theFinal Maturity Date.****

###  

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

###  

## **6.2**                                Reborrowing

## ** **

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

 

# **7.**                                      PREPAYMENT AND CANCELLATION

# ** **

## **7.1**                                Illegality

## ** **

If it becomesunlawful in any applicable jurisdiction for a Lender to perform any of itsobligations as contemplated by this Agreement or to fund or maintain itsparticipation in any Loan:

 

### (a)                                  thatLender shall promptly notify the COFACE Agent upon becoming aware of thatevent;

###  

### (b)                                 uponthe COFACE Agent notifying the Borrower, the Commitment of that Lender will beimmediately cancelled; and

###  

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

###  

## **7.2**                                MandatoryPrepayment - Exit

## ** **

### (a)                                  Forthe purposes of this Clause 7.2:

###  

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

 

“**Borrower Change of Control**” means:

 

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

####  

#### 57

#### 

####  

#### instruments, warrants or options then outstandinghave been exercised); or

####  

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

####  

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

####  

#### (iv)                              theboard of directors of the Borrower shall cease to consist of a majority ofContinuing Directors.

####  

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

 

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

 

“**Thermo Change of Control**” means:

 

(i)                                     James Monroe III (or, in the event ofhis death or Incapacity, his executors, trustees, heirs or legalrepresentatives) shall at any time and for any reason fail to own and control(without being subject to a voting trust, voting agreement, shareholdersagreement or any other agreement limiting or affecting the voting of suchstock), free and clear of any Lien, at least forty *per cent.***(40%) of boththe economic and voting interests in any member of the Thermo Group’s CapitalStock (assuming that all convertible instruments, warrants or options thenoutstanding have been exercised); or

 

(ii)                                  any “*person*” or “*group*” (as such terms are used in Sections 13(d) and14(d) of the US Securities Exchange Act of 1934 (the “**Exchange Act**”)),Acting in Concert or otherwise, is or shall become the 

 

58

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

 

(iii)                               the board of directors (or itsequivalent) of any member of the Thermo Group shall cease to consist of amajority of Continuing Directors; or

 

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

 

(v)                                 any “*change ofcontrol*” or similar event shall occur under any document withrespect to any equity or debt instrument issued or incurred by the ThermoGroup.

 

### (b)                                 The Borrower must promptly notify the COFACE Agent if it becomesaware that the circumstances referred to in paragraph (c) below haveoccurred or are likely to occur.

###  

### (c)                                  Upon the occurrence of a Change of Control, the Total Commitmentsshall be cancelled and all outstanding Loans, together with accrued interestand all other amounts accrued under the Finance Documents, shall becomeimmediately due and payable.

###  

## **7.3**                                Mandatory Prepayment — Initial Excess Cash Flow

## ** **

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

 

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

####  

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

#####  

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

 

59

----

 

of an amount not to exceed:

 

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

#####  

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

#####  

Any amounts paid to the DSRA Providers or Thermopursuant to this Clause 7.3(a) shall reduce any amount owing by theBorrower to Thermo under the Thermo Cash Contribution Agreement.  No payment shall be made under this Clause7.3(a) to the extent any payments would exceed the amount owing by theBorrower to Thermo under the Thermo Cash Contribution Agreement (but excludingany payments of interest or capitalised interest due and owing by the Borrowerto Thermo under the Thermo Cash Contribution Agreement).  Any such interest or capitalised interestshall only be payable by the Borrower to Thermo following satisfaction of eachof the distribution conditions set out at Clause 22.6 (*Limitations on Dividends and Distributions*)(other than Clause 22.6(b)(iv) (*Limitationson Dividends and Distributions*));

 

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

###  

### (c)                                  ***finally***, in mandatory prepayment of the Loans, in an amount determined bythe Borrower (and verified by the COFACE Agent) five (5) Business Daysprior to the First Repayment Date (taking into account all accrued Excess CashFlow *less*the amounts paidpursuant to Clauses 7.3(a) and (b) above),

###  

*provided that*, in each case, for the purposeof calculating such Excess Cash Flow, an amount equivalent to the amount ofDebt Service to be paid by the Borrower on the First Repayment Date shall notbe included in the determination of Excess Cash Flow.

 

## **7.4**                                Mandatory Prepayment — Ongoing Excess Cash Flow

## ** **

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

 

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

#####  

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

 

60

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

#####  

of an amount not to exceed:

 

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

#####  

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

#####  

Any amounts paid to the DSRA Providers or Thermopursuant to this Clause 7.4(a) shall reduce any amount owing by theBorrower to Thermo under the Thermo Cash Contribution Agreement.  No payment shall be made under this Clause7.4(a) to the extent any payments would exceed the amount owing by theBorrower to Thermo under the Thermo Cash Contribution Agreement (but excludingany payments of interest or capitalised interest due and owing by the Borrowerto Thermo under the Thermo Cash Contribution Agreement).  Any such interest or capitalised interestshall only be payable by the Borrower to Thermo following satisfaction of eachof the distribution conditions set out at Clause 22.6 (*Limitations on Dividends and Distributions*)(other than Clause 22.6(b)(iv) (*Limitationson Dividends and Distributions*));

 

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

###  

### (c)                                  ***thirdly***, in mandatory prepayment of the Loans *providedthat*, such prepayment shall not apply to the first ten millionDollars (US$10,000,000) of Excess Cash Flow which accrues in each such DebtService Period.

###  

## **7.5**                                Mandatory Prepayment - Insurance and Condemnation Events

## ** **

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

 

61

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

###  

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

####  

#### (ii)                                  with respect to any such Net Cash Proceeds which are committed bythe Borrower to be reinvested in replacement assets of French suppliers or theprocurement or Launch of a Satellite or Satellites acquired or planned to beacquired pursuant to the then current business plan of the Borrower (asevidenced by a contractual agreement for the purchase or acquisition of assets)within six (6) Months after receipt of such Net Cash Proceeds and the proceeds arising out of therelevant Insurance are placed into the Insurance Proceeds Account (such accountto be secured in favour of the Security Agent (for and on behalf of itself andthe other Finance Parties)) and, *provided that*no action is being taken under Clause 24 (*Remedies Upon an Event ofDefault*), will be applied by the COFACE Agent in payment to asupplier of such replacement asset or replacement Satellite, any long leaditems, launch services, insurances or other costs directly arising in relationto such purchase or Launch in accordance with the terms and conditions agreedbetween the Borrower and the Supplier. Any excess in Net Cash Proceeds after taking into account such paymentsand costs shall be transferred to the Collection Account in accordance with theAccounts Agreement.

####  

## **7.6**                                Mandatory Prepayments — Asset Dispositions

## ** **

### (a)                                  The Borrower shall prepay the Loans in an amount equal to onehundred *per cent.***(100%) of the aggregate Net Cash Proceeds from any AssetDisposition by the Borrower or any of its Subsidiaries.

###  

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

###  

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

####  

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

####  

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

 

62

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

#####  

## **7.7**                                Mandatory Prepayment — COFACE Insurance Policy

## ** **

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

 

## **7.8**                                Voluntary Cancellation

## ** **

The Borrowermay, if it:

 

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

###  

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

###  

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

 

## **7.9**                                Voluntary Prepayment of the Loans

## ** **

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

###  

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

###  

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

###  

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

 

63

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

## ** **

### (a)                                  If:

###  

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

 

#### (ii)                                  any Lender claims indemnification from the Borrower underClause 13.2 (*Tax Indemnity*) orClause 14.1 (*Increased Costs*),

####  

the Borrowermay, whilst the circumstance giving rise to the requirement for indemnificationcontinues, give the COFACE Agent notice of cancellation of the Commitment ofthat Lender and its intention to procure the repayment of that Lender’sparticipation in the Loans.

 

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

###  

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

###  

## **7.11**                          Application of Mandatory Prepayments

## ** **

### Other than inrespect of any prepayment under Clause 7.1 (*Illegality*),all mandatory prepayments shall be applied:

###  

### (a)                                  *pro rata*among theFacilities and within each Facility; and

###  

### (b)                                 in inverse order of maturity across the remaining scheduledrepayments under each Facility.

###  

## **7.12**                          Restrictions

## ** **

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

###  

### (b)                                 Any prepayment under this Agreement shall be made together withaccrued interest on the amount prepaid and, subject to any Break Costs, withoutpremium or penalty.

###  

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

###  

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

 

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

###  

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

###  

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

###  

# **8.**                                      INTEREST

# ** **

## **8.1**                                Calculation of Interest

## ** **

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

 

### (a)                                  Applicable Margin;

###  

### (b)                                 LIBOR; and

###  

### (c)                                  Mandatory Cost, if any.

###  

## **8.2**                                Payment of Interest

## ** **

The Borrowershall pay accrued interest on each Loan on the last day of each InterestPeriod.

 

## **8.3**                                Default Interest

## ** **

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

###  

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

###  

#### (i)                                     the first Interest Period for that overdue amount shall have aduration equal to the unexpired portion of the current Interest Period relatingto that Loan; and

 

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

####  

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

###  

## **8.4**                                Notification of Rates of Interest

## ** **

The COFACEAgent shall within two (2) Business Days after a Quotation Day notify theLenders and the Borrower of the determination of a rate of interest under thisAgreement.

 

# **9.**                                      INTEREST PERIODS

# ** **

## **9.1**                                Interest Periods

## ** **

### (a)                                  The Interest Period for which any Loan is outstanding shall bedivided into successive Interest Periods each of which shall start on the lastday of the preceding such Interest Period.

###  

### (b)                                 The initial Interest Period for each Loan:

###  

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

####  

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

####  

## **9.2**                                Duration

## ** **

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

###  

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

 

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## **9.3**                                Non-Business Days

## ** **

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

 

## **9.4**                                Consolidation of Loans

## ** **

If two (2) ormore Interest Periods:

 

### (a)                                  relate to Loans; and

###  

### (b)                                 end on the same date,

###  

those Loanswill be consolidated into, and treated as, a single Loan on the last day of theInterest Period.

 

# **10.**                               CHANGES TO THE CALCULATION OF INTEREST

# ** **

## **10.1**                          Absence of Quotations

## ** **

Subject toClause 10.2 (*Market Disruption*), if LIBOR isto be determined by reference to the Reference Banks but a Reference Bank doesnot supply a quotation by 11:00 a.m. (London time) on the QuotationDay, the applicable LIBOR shall be determined on the basis of the quotations ofthe remaining Reference Banks.

 

## **10.2**                          Market Disruption

## ** **

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

###  

#### (i)                                     the Applicable Margin;

####  

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

####  

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

####  

### (b)                                 In this Agreement “**MarketDisruption Event**” means:

###  

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

####  

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

 

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

####  

## **10.3**                          Alternative Basis of Interest or Funding

## ** **

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

###  

### (b)                                 Any alternative basis agreed pursuant to paragraph (a) aboveshall, with the prior consent of all the Lenders and the Borrower, be bindingon all Parties.

###  

## **10.4**                          Break Costs

## ** **

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

###  

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

###  

# **11.**                               FEES

# ** **

## **11.1**                          Commitment Fee

## ** **

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

###  

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

####  

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

####  

### (b)                                 The accrued commitment fee is payable:

###  

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

####  

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

####  

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

####  

## **11.2**                          Up-front Fee

## ** **

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

 

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

###  

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

###  

#### (i)                                    sixty (60) days from the dateof this Agreement; and

####  

#### (ii)                                 Financial Close.

####  

## **11.3**                          COFACE Agent Fees

## ** **

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

###  

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

###  

## **11.4**                          Security Agent Fees

## ** **

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

###  

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

###  

## **11.5**                          Non-Refundable

## ** **

Each of thefees set out in this Clause 11 (*Fees*) once paidare non-refundable and non-creditable against other fees payable in connectionwith the Project.

 

# **12.**                              COFACEINSURANCE PREMIA

# ** **

## **12.1**                          Payment by the Borrower

## ** **

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

 

69

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## **12.2**                          Financing with Proceeds of Loans

## ** **

### (a)                                 Subject to all the other terms andconditions of this Agreement, the COFACE Insurance Premia shall be financedfrom the first Utilisation under the Facilities.

###  

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

###  

## **12.3**                          Borrower’s Payment Obligations

## ** **

### (a)                                 The Borrower acknowledges that theobligation to pay one hundred *per cent.*(100%) of the COFACE Insurance Premia as and when it arises isabsolute and unconditional.  If theCOFACE Insurance Premia due and payable is not financed or paid out of anyLoans under this Agreement or in the event that the undrawn amount under aFacility is not sufficient to finance one hundred *per cent.* (100%) of the COFACE Insurance Premia due toCOFACE under the COFACE Insurance Policy, the Borrower shall pay directly tothe COFACE Agent the amount of any such COFACE Insurance Premia not so financedor paid.

###  

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

###  

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

####  

#### (ii)                                 one million four hundred and fortytwo thousand eight hundred and eighty Dollars (US$1,442,880) in respect ofFacility B.

####  

### (c)                                 The COFACE Agent will only benotified of the actual amount of the COFACE Insurance Premia on the date offinal issuance of each COFACE Insurance Policy. Following receipt of each COFACE Insurance Policy, the COFACE Agentshall promptly notify the Borrower of the actual amount of the COFACE InsurancePremia.  If the actual amount of theCOFACE Insurance Premia is greater than the estimated amount set out inparagraph (b) above, the Borrower shall be obliged to make payment ofthe actual amount of the COFACE Insurance Premia.  Accordingly, the estimated amount provided inClauses 3.1(c) (*Payment of the COFACEInsurance Premia*) and 3.2(b) (*Payment ofthe COFACE Insurance Premia*) shall be automatically increased orreduced by the amounts required to ensure the payment of the premiums afteradjustment by COFACE, which would result in an increase or reduction by acorresponding amount in the Total Commitments subject to availableCommitments).  The Borrower acknowledgesthat the obligation to pay the COFACE Insurance premia related to thisAgreement is absolute and unconditional.

 

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

###  

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

###  

### (f)                                   Notwithstanding paragraph (e) aboveand subject to paragraph (g) below:

###  

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

####  

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

####  

the Borrowershall be entitled to submit a request to the COFACE Agent for reimbursement ofany proportionate amount of the COFACE Insurance Premia, in an amount up to onehundred *per cent.* (100%) ofthe total amount of the COFACE Insurance Premia, which relates to suchcancelled amount of any undisbursed portion of a Facility and/or outstandingAvailable Commitment referred to in paragraphs (i) and (ii) above,as the case may be, in each case such amount to be subject to the approval ofthe COFACE Agent.

 

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

###  

#### (i)                                    a Default shall have occurred andbe continuing; and

####  

#### (ii)                                 the COFACE Agent has not receivedfunds from COFACE in an amount equal to the COFACE Insurance Premia to bereimbursed.

####  

# **13.**                              TAX GROSS-UPAND INDEMNITIES

# ** **

## **13.1**                          Tax Gross-up

## ** **

### (a)                                 The Borrower shall make allpayments to be made by it without any Tax Deduction, unless a Tax Deduction isrequired by law.

###  

### (b)                                The Borrower shall, promptly uponbecoming aware that it must make a Tax Deduction (or that there is any changein the rate or the basis of a Tax Deduction) notify the COFACE Agentaccordingly.  Similarly, a Lender shallnotify the COFACE Agent on becoming so aware in respect of a payment payable tothat Lender.  If the COFACE Agentreceives such notification from a Lender it shall notify the Borrower.

 

71

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### (c)                                 If a Tax Deduction is required by lawto be made by the Borrower, the amount of the payment due from the Borrowershall be increased to an amount which (after making any Tax Deduction) leavesan amount equal to the payment which would have been due if no Tax Deductionhad been required.

###  

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

###  

### (e)                                 Within thirty (30) days ofmaking either a Tax Deduction or any payment required in connection with thatTax Deduction, the Borrower making that Tax Deduction shall deliver to theCOFACE Agent for the Finance Party entitled to the payment evidence reasonablysatisfactory to that Finance Party that the Tax Deduction has been made or (asapplicable) any appropriate payment paid to the relevant taxing authority.

###  

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

###  

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

####  

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

#####  

##### (B)                               in the circumstance of theBorrower; or

#####  

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

####  

### (g)                                Each Lender agrees to usereasonable efforts (consistent with legal and regulatory restrictions andsubject to overall policy considerations of such Lender) to file anyWithholding Forms as requested by the Borrower that may be necessary toestablish an exemption from withholding of U.S. federal income taxes.

###  

## **13.2**                          Tax Indemnity

## ** **

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

 

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

###  

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

####  

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

####  

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

 

##### (A)                             is compensated for by an increasedpayment under Clause 13.1 (*Tax Gross-up*);or

#####  

##### (B)                               would have been compensated for byan increased payment under Clause 13.1 (*TaxGross-up*) but was not so compensated solely because one of theexclusions in paragraph (f) of Clause 13.1 (*Tax Gross-up*) applied.

#####  

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

###  

### (d)                                A Protected Party shall, onreceiving a payment from the Borrower under this Clause 13.2, notify theCOFACE Agent.

###  

## **13.3**                          Tax Credit

## ** **

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

 

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

###  

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

###  

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

 

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

####  

#### (ii)                                 if such Tax Credit is subsequentlydisallowed or reduced, the Borrower shall indemnify the Finance Party for suchamount; and

 

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

## ** **

## **13.4**                          Stamp Taxes

## ** **

The Borrowershall pay and, within three (3) Business Days of demand, indemnify eachFinance Party against any cost, loss or liability that Finance Party incurs inrelation to all stamp duty, registration and other similar Taxes payable inrespect of any Finance Document.

 

## **13.5**                          Value Added Tax

## ** **

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

###  

### (b)                                Where any Party is required by anyof the Finance Documents to reimburse a Finance Party in respect of any costsor expenses, that Party shall also at the same time pay and indemnify the FinanceParty against all VAT incurred by the Finance Party in respect of the costs orexpenses to the extent that the Finance Party reasonably determines thatneither it nor any other member of the group of which it is a member for VATpurposes is entitled to credit or repayment from the relevant tax authority inrespect of the VAT.

###  

# **14.**                              INCREASEDCOSTS

# ** **

## **14.1**                          Increased Costs

## ** **

### (a)                                 Subject to Clause 14.3 (*Exceptions*) the Borrower shall, within five (5) BusinessDays of a demand by the COFACE Agent, pay for the account of a Finance Partythe amount of any Increased Costs incurred by that Finance Party or any of itsAffiliates as a result of:

###  

#### (i)                                    the introduction of or any changein (or in the interpretation, administration or application of) any law orregulation; or

####  

#### (ii)                                 compliance with any law orregulation made after the date of this Agreement.

####  

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

###  

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

####  

#### (ii)                                 an additional or increased cost;or

 

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#### (iii)                              a reduction of any amount due andpayable under any Finance Document,

####  

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

 

## **14.2**                          Increased Cost Claims

## ** **

### (a)                                 A Finance Party intending to makea claim pursuant to Clause 14.1 (*Increased Costs*)shall notify the COFACE Agent of the event giving rise to the claim, followingwhich the COFACE Agent shall promptly notify the Borrower.

###  

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

###  

## **14.3**                          Exceptions

## ** **

Clause 14.1(*Increased Costs*) does not apply to theextent any Increased Cost is:

 

### (a)                                 attributable to a Tax Deductionrequired by law to be made by the Borrower;

###  

### (b)                                compensated for byClause 13.2 (*Tax Indemnity*)**(or would have been compensated for under Clause 13.2(*Tax Indemnity*) but was not socompensated solely because any of the exclusions in paragraph (b) ofClause 13.2 (*Tax Indemnity*) applied);

###  

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

###  

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

###  

# **15.**                              OTHERINDEMNITIES

# ** **

## **15.1**                          Currency Indemnity

## ** **

### (a)                                 If any sum due from an Obligorunder the Finance Documents (a “**Sum**”),or any order, judgment or award given or made in relation to a Sum, has to beconverted from the currency (the “**FirstCurrency**”) in which that Sum is payable into another currency (the “**Second Currency**”) for the purpose of:

###  

#### (i)                                    making or filing a claim or proofagainst an Obligor;

####  

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

 

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

 

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

#####  

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

#####  

### (b)                                The Borrower waives any right itmay have in any jurisdiction to pay any amount under the Finance Documents in acurrency or currency unit other than that in which it is expressed to bepayable.

###  

## **15.2**                          Other Indemnities

## ** **

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

 

### (a)                                 the occurrence of any Event ofDefault;

###  

### (b)                                a failure by the Borrower to payany amount due under a Finance Document on its due date, including withoutlimitation, any cost, loss or liability arising as a result of Clause 30 (*Sharing among the Finance Parties*);

###  

### (c)                                 funding, or making arrangements tofund, its participation in a Loan requested by the Borrower in a UtilisationRequest but not made by reason of the operation of any one or more of theprovisions of this Agreement (other than by reason of default or negligence bythat Lender alone);

###  

### (d)                                a Loan (or part of a Loan) notbeing prepaid in accordance with a notice of prepayment given by the Borrower;or

###  

### (e)                                 the breach by the Borrower or anymember of the Group of any applicable Environmental Laws or EnvironmentalPermits.  Any Affiliate of a FinanceParty may rely on this Clause 15.2(e).

###  

## **15.3**                          Indemnity to the COFACE Agent

## ** **

The Borrowershall promptly indemnify the COFACE Agent against any cost, loss or liabilityincurred by the COFACE Agent (acting reasonably) as a result of:

 

### (a)                                 investigating any event which itreasonably believes is a Default; or

###  

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

 

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## **15.4**                          Indemnity to the Security Agent

## ** **

### (a)                                 The Borrower shall promptlyindemnify the Security Agent against any cost, loss or liability incurred bythe Security Agent as a result of:

###  

#### (i)                                    the protection or enforcement of aLien expressed to be created under a Security Document; or

####  

#### (ii)                                 the exercise of any of the rights,powers, discretions and remedies vested in it by the Finance Documents or bylaw.

####  

### (b)                                The Security Agent may, inpriority to any payment to other Finance Parties, indemnify itself out of theassets subject to a Lien expressed to be created under the Security Documentsin respect of, and pay and retain, all sums necessary to give effect to theindemnity in this Clause 15.4.

###  

# **16.**                              MITIGATION BYTHE LENDERS

# ** **

## **16.1**                          Mitigation

## ** **

### (a)                                 Each Finance Party shall, inconsultation with the Borrower, take all reasonable steps to mitigate anycircumstances which arise and which would result in any amount becoming payableunder or pursuant to, or cancelled pursuant to, any of Clause 7.1 (*Illegality*), Clause 13 (*Tax gross-upand indemnities*), Clause 14 (*Increasedcosts*) or paragraph 3 of Schedule 4(*Mandatory Cost Formula*) including (butnot limited to) transferring its rights and obligations under the FinanceDocuments to another Affiliate or Facility Office.

###  

### (b)                                Paragraph (a) above doesnot in any way limit the obligations of the Borrower under the FinanceDocuments.

###  

## **16.2**                          Limitation of Liability

## ** **

### (a)                                 The Borrower shall indemnify eachFinance Party for all costs and expenses reasonably incurred by that FinanceParty as a result of steps taken by it under Clause 16.1 (*Mitigation*).

###  

### (b)                                A Finance Party is not obliged totake any steps under Clause 16.1 (*Mitigation*) if,in the opinion of that Finance Party (acting reasonably), to do so might beprejudicial to it.

###  

# **17.**                              COSTS ANDEXPENSES

# ** **

## **17.1**                          Transaction Expenses

## ** **

The Borrowershall promptly on demand pay the COFACE Agent, the Security Agent and eachMandated Lead Arranger the amount of all costs and expenses (including legalfees) reasonably incurred by any of them in connection with the negotiation,preparation, printing, execution and syndication of:

 

### (a)                                 this Agreement and any other documentsreferred to in this Agreement; and

 

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### (b)                                any other Finance Documentsexecuted after the date of this Agreement.

###  

## **17.2**                          Amendment Costs

## ** **

If:

 

### (a)                                 the Borrower requests anamendment, waiver or consent; or

###  

### (b)                                an amendment is required pursuantto Clause 31.10 (*Change ofCurrency*),

###  

the Borrowershall, within three (3) Business Days of demand, reimburse the COFACEAgent and the Security Agent for the amount of all costs and expenses(including legal fees) incurred by the COFACE Agent and the Security Agent inresponding to, evaluating, negotiating or complying with that request orrequirement.

 

## **17.3**                          Enforcement Costs

## ** **

The Borrowershall, within three (3) Business Days of demand, pay to each Finance Partythe amount of all costs and expenses (including legal fees) incurred by thatFinance Party in connection with the enforcement of, or the preservation of anyrights under, any Finance Document.

 

## **17.4**                          Security Agent Expenses

## ** **

The Borrowershall, within three (3) Business Days of demand, pay to the Security Agentthe amount of all costs and expenses (including legal fees) incurred by it inconnection with the release of any Lien created pursuant to any SecurityDocument.

 

# **18.**                              REPRESENTATIONS

# ** **

Subject to thedisclosures made by the Borrower set out in Schedule 24 (*Disclosures*),the Borrower makes the representations and warranties set out in thisClause 18 (*Representations*) to each FinanceParty on the date of this Agreement.

 

## **18.1**                          Status

## ** **

### (a)                                 It is a corporation, dulyincorporated and validly existing (and to the extent applicable, in goodstanding) under the law of its jurisdiction of incorporation.

###  

### (b)                                It and each of its Subsidiarieshas the power to own its assets and carry on its business as it is being conducted.

###  

## **18.2**                          Binding Obligations

## ** **

Subject to theReservations:

 

### (a)                                 the obligations expressed to beassumed by it in each Transaction Document to which it is a party are legal,valid, binding and enforceable obligations; and

###  

### (b)                                (without limiting the generalityof paragraph (a) above), each Security Document to which it is aparty creates the security interests which that

 

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###  

### Security Document purports to create and thosesecurity interests are valid and effective.

###  

## **18.3**                          Non-Conflictwith other Obligations

## ** **

The entry intoand performance by it of, and the transactions contemplated by, the TransactionDocuments and the granting of the security interests contemplated by theSecurity Documents do not and will not conflict with:

 

### (a)                                  anyApplicable Law;

###  

### (b)                                 theconstitutional documents of any member of the Group; or

###  

### (c)                                  anyagreement or instrument binding upon it or any member of the Group or any ofits, or any member of the Group’s, assets or constitute a default ortermination event (however described) under any such agreement or instrument,where such conflict would have or is reasonably likely to have a MaterialAdverse Effect.

###  

## **18.4**                          Powerand Authority

## ** **

### (a)                                  Ithas the power to enter into, perform and deliver, and has taken all necessaryaction to authorise its entry into, performance and delivery of, theTransaction Documents to which it is or will be a party and the transactionscontemplated by those Transaction Documents.

###  

### (b)                                 Nolimit on its powers will be exceeded as a result of the borrowing, grant ofsecurity or giving of guarantees or indemnities contemplated by the TransactionDocuments to which it is a party.

###  

## **18.5**                          No ProceedingsPending or Threatened

## ** **

No litigation, arbitration oradministrative proceedings of or before any court, arbitral body or agencywhich is not frivolous, vexatious or otherwise an abuse of court process, andwhich, if adversely determined, could reasonably have a Material Adverse Effect(to the best of its knowledge and belief) have been started against it or anyof its Subsidiaries.

 

## **18.6**                          Authorisations

## ** **

### (a)                                  Eachof the Borrower and its Subsidiaries has all material Authorisations required:

###  

#### (i)                                     toenable it lawfully to enter into, exercise its rights and comply with itsobligations in the Transaction Documents to which it is a party; and

####  

#### (ii)                                  tomake the Transaction Documents to which it is a party admissible in evidence inits jurisdiction of incorporation,

####  

have been obtained or effected and are infull force and effect.

 

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### (b)                                 Eachof the Borrower and its Subsidiaries:

###  

#### (i)                                     hasall Authorisations required for it to conduct its business as currentlyconducted, each of which is in full force and effect, is final and not subjectto review on appeal and is not the subject of any pending or, to the best ofits knowledge, threatened attack by direct or collateral proceeding;

####  

#### (ii)                                  isin compliance with each Authorisation applicable to it and in compliance withall other Applicable Laws relating to it or any of its respective properties;and

####  

#### (iii)                               hasfiled in a timely manner all material reports, documents and other materialsrequired to be filed by it under all Applicable Laws with any GovernmentalAuthority and has retained all material records and documents required to beretained by it under Applicable Law,

####  

except in each case where the failure tohave done so, comply or file could not reasonably be expected to have aMaterial Adverse Effect.

 

## **18.7**                          IntellectualProperty Matters

## ** **

### (a)                                  Eachof the Borrower and its Subsidiaries owns or possesses rights to use allmaterial franchises, licences, copyrights, copyright applications, patents,patent rights or licences, patent applications, trademarks, trademark rights,service marks, service mark rights, trade names, trade name rights, copyrightsand other rights with respect to the foregoing which are reasonably necessaryto conduct its business as currently conducted (the “**Intellectual Property**”).

###  

### (b)                                 Noevent has occurred which permits, or after notice or lapse of time or bothwould permit, the revocation or termination of any such material rights, and,to the Borrower’s knowledge, neither the Borrower nor any Subsidiary thereof isliable to any person for infringement under Applicable Law with respect to anysuch rights as a result of its business operations except as could notreasonably be expected to have a Material Adverse Effect.

###  

## **18.8**                          EnvironmentalMatters

## ** **

### (a)                                  Theproperties owned, leased or operated by the Borrower and its Subsidiaries nowor in the past do not contain, and to their knowledge have not previouslycontained, any Hazardous Materials in amounts or concentrations which:

###  

#### (i)                                     constituteor constituted an unremediated violation of applicable Environmental Laws andEnvironmental Permits; or

####  

#### (ii)                                  couldgive rise to a material liability under applicable Environmental Laws andEnvironmental Permits.

####  

### (b)                                 Tothe knowledge of the Borrower and its Subsidiaries, the Borrower, each of itsSubsidiaries and such properties and all operations conducted in connectiontherewith are in compliance, and, at all such times when such properties havebeen owned or operated by the Borrower or any of its Subsidiaries have been 

 

80

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### in compliance, with all applicable EnvironmentalLaws and Environmental Permits, and there is no contamination at, under orabout such properties or such operations which could interfere with thecontinued operation of such properties or materially impair the fair saleablevalue thereof.

###  

### (c)                                  Neitherthe Borrower nor any Subsidiary thereof has received any notice of violation,alleged violation, non-compliance, liability or potential liability regardingenvironmental matters, Hazardous Materials, or compliance with EnvironmentalLaws and Environmental Permits, nor does the Borrower or any Subsidiary thereofhave knowledge or reason to believe that any such notice will be received or isbeing threatened.

###  

### (d)                                 Tothe knowledge of the Borrower and its Subsidiaries, Hazardous Materials havenot been transported or disposed of to or from the properties owned, leased oroperated by the Borrower and its Subsidiaries in violation of, or in a manneror to a location which could give rise to material liability under,Environmental Laws and Environmental Permits, nor have any Hazardous Materialsbeen generated, treated, stored or disposed of at, on or under any of suchproperties in violation of, or in a manner that could give rise to materialliability under, any applicable Environmental Laws.

###  

### (e)                                  Nojudicial proceedings or governmental or administrative action is pending or, tothe knowledge of the Borrower, threatened under any Environmental Law orEnvironmental Permits to which the Borrower or any Subsidiary thereof is orwill be named as a potentially responsible party, nor are there any consentdecrees or other decrees, consent orders, administrative orders or otherorders, or other administrative or judicial requirements outstanding under anyEnvironmental Law with respect to the Borrower, any Subsidiary or propertiesowned, leased or operated by the Borrower or any Subsidiary, now or in thepast, that could reasonably be expected to have a Material Adverse Effect.

###  

### (f)                                    Therehas been no release, nor to the best of the Borrower’s knowledge, threat ofrelease, of Hazardous Materials at or from properties owned, leased or operatedby the Borrower or any Subsidiary, now or in the past, in violation of or inamounts or in a manner that could give rise to liability under EnvironmentalLaws or Environmental Permits that could reasonably be expected to have aMaterial Adverse Effect.

###  

### (g)                                 Thereare no facts, circumstances or conditions relating to the past or presentbusiness or operations of the Borrower or any Subsidiary, including thedisposal of any wastes, Hazardous Material or other materials, or to the pastor present ownership or use of any real property by the Borrower or anySubsidiary, that could reasonably be expected to give rise to an EnvironmentalClaim against or to liability (other than in an immaterial respect) of anyBorrower or any Subsidiary under any Environmental Laws or EnvironmentalPermits.

 

## **18.9**                          ERISA

## ** **

### (a)                                  Asof the date of this Agreement, neither an Obligor nor any ERISA Affiliatemaintains or contributes to, or has any obligation under, any Employee Benefit

 

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### Plans other than those identified in Schedule 9 (*ERISA Plans*).

###  

### (b)                                 EachEmployee Benefit Plan is in compliance in form and operation with its terms andwith ERISA and the Code (including Code provisions compliance with which isnecessary for any intended favourable tax treatment) and all other Applicablelaws, except where any failure to comply would not, individually or in theaggregate, reasonably be expected to result in any material liability of anyObligor or ERISA Affiliate.

###  

### (c)                                  EachEmployee Benefit Plan that is intended to be qualified under Section 401(a) ofthe Code has been determined by the Internal Revenue Service to be soqualified, and each trust related to such plan has been determined by theInland Revenue Service to be exempt under Section 501(a) of the Code,taking into account all applicable tax law changes (or has been submitted, oris within the remedial amendment period for submitting, an application for sucha determination from the Internal Revenue Service), and nothing has occurredsince the date of each such determination that would reasonably be expected toadversely affect such determination (or, in the case of a Employee Benefit Planwith no determination, nothing has occurred that would materially adverselyaffect the issuance of a favourable determination by the Internal RevenueService or otherwise materially adversely affect such qualification).

###  

### (d)                                 Noliability has been incurred by any Obligor or any ERISA Affiliate which remainsunsatisfied for any taxes or penalties with respect to any Employee BenefitPlan or any Multiemployer Plan except for a liability that would not,individually or in the aggregate, reasonably be expected to result in amaterial liability of such Obligor or ERISA Affiliate.

###  

### (e)                                  Exceptwhere the failure of any of the following representations to be correct in allmaterial respects would not, individually or in the aggregate, reasonably beexpected to result in a material liability of any Obligor or any ERISAAffiliate, no Obligor or any ERISA Affiliate has:

###  

#### (i)                                     engagedin a non-exempt prohibited transaction described in Section 406 of ERISAor Section 4975 of the Code;

####  

#### (ii)                                  incurredany liability to the PBGC which remains outstanding, or reasonably expects toincur any such liability other than the payment of premiums and there are nopremium payments which are within the applicable time limits prescribed byApplicable Law, due and unpaid;

####  

#### (iii)                               failedto make a required contribution or payment to a Multiemployer Plan within theapplicable time limits prescribed by Applicable Law; or

####  

#### (iv)                              failedto make a required instalment or other required payment under Section 412of the Code or Section 302 of ERISA.

 

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### (f)                                    NoERISA Termination Event, which individually or in the aggregate wouldreasonably be expected to result in a material liability of any Obligor orERISA Affiliate has occurred or is reasonably expected to occur.

###  

### (g)                                 Exceptwhere the failure of any of the following representations to be correct in allmaterial respects would not, individually or in the aggregate, reasonably beexpected to result in a material liability of any Obligor or any ERISAAffiliate, no proceeding, claim (other than a benefits claim in the ordinarycourse), lawsuit and/or investigation is existing or, to the best knowledge ofthe Borrower after due inquiry, threatened concerning or involving any:

###  

#### (i)                                     employeewelfare benefit plan (as defined in Section 3(1) of ERISA) currentlymaintained or contributed to any Obligor or any ERISA Affiliate;

####  

#### (ii)                                  PensionPlan; or

####  

#### (iii)                               MultiemployerPlan.

####  

### (h)                                 Thereexists no Unfunded Pension Liability with respect to any Pension Plan, exceptfor any such Unfunded Pension Liability that individually or together with anyother positive Unfunded Pension Liabilities with respect to any Pension Plans,is not reasonably expected to result in a material liability of any Obligor orERISA Affiliate.

###  

### (i)                                     Ifeach Obligor and each ERISA Affiliate were to withdraw in a complete withdrawalfrom all Multiemployer Plans as of the date this assurance is given or deemed given,the aggregate withdrawal liability that would be incurred would not reasonablybe expected to result in a material liability of any Obligor or ERISAAffiliate.

###  

### (j)                                     NoPension Plan which is subject to Section 412 of the Code or Section 302of ERISA has applied for or received an extension of any amortization period,within the meaning of Section 412 of the Code or Section 303 or 304of ERISA.  No Obligor or ERISA Affiliatehas ceased operations at a facility so as to become subject to the provisions ofSection 4068(a) of ERISA, withdrawn as a substantial employer so asto become subject to the provisions of Section 4063 of ERISA or ceasedmaking contributions to any Pension Plan subject to Section 4064(a) ofERISA to which it made contributions.  NoLien imposed under the Code or ERISA on the assets of any Obligor or any ERISAAffiliate exists or is likely to arise on account of any Pension Plan.  No Obligor or ERISA Affiliate has anyliability under Section 4069 or 4212(c) of ERISA.

###  

## **18.10**                    MarginStock

## ** **

### (a)                                  Neitherthe Borrower nor any Subsidiary of it is engaged principally or as one of itsactivities in the business of extending credit for the purpose of “*purchasing*” or “*carrying*” any “*margin stock*” (as each such term is defined or used,directly or indirectly, in Regulation U of the Board of Governors of theFederal Reserve System).

 

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### (b)                                 Nopart of the proceeds of the Loans will be used for purchasing or carryingmargin stock or for any purpose which violates, or which would be inconsistentwith, the provisions of Regulation T, U or X of such Board of Governors.

###  

## **18.11**                    GovernmentRegulation

## ** **

Neither the Borrower nor any Subsidiary isan “*investment company*” or a company “*controlled*” by an “*investment company*”(as each such term is defined or used in the Investment Company Act of 1940, asamended) and neither the Borrower nor any Subsidiary is, or after giving effectto any Utilisation will be, subject to regulation under the Interstate CommerceAct, as amended, or any other Applicable Law which limits its ability to incuror consummate the transactions contemplated under this Agreement.

 

## **18.12**                    MaterialContracts

## ** **

### (a)                                  Schedule12 (*Material Contracts*) contains a completeand accurate list of all Material Contracts of the Borrower and itsSubsidiaries in effect as of the date of this Agreement.

###  

### (b)                                 Otherthan as set out in Schedule 12 (*Material Contracts*),each such Material Contract is, and after giving effect to the consummation ofthe transactions contemplated by the Finance Documents will be, in full forceand effect in accordance with the terms thereof.

###  

### (c)                                  TheBorrower and its Subsidiaries have delivered to the COFACE Agent a true andcomplete copy of each Material Contract required to be listed on Schedule 12 (*Material Contracts*) (including all amendments with respectthereto).

###  

### (d)                                 Neitherthe Borrower nor any Subsidiary (nor, to the knowledge of the Borrower, anyother party thereto) is in breach of or in default under any Material Contractin any material respect.

###  

## **18.13**                    EmployeeRelations

## ** **

### (a)                                  Eachof the Borrower and its Subsidiaries has a work force in place adequate toconduct its business as currently conducted and is not, as of the date of thisAgreement, party to any collective bargaining agreement nor has any labourunion been recognised as the representative of its employees except as set outin Schedule 13 (*Labour and Collective BargainingAgreements*).

###  

### (b)                                 TheBorrower knows of no pending, threatened or contemplated strikes, work stoppage orother collective labour disputes involving its employees or those of itsSubsidiaries that could reasonably be expected to have a Material AdverseEffect.

 

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## **18.14**                    BurdensomeProvisions

## ** **

No Subsidiary is party to any agreement orinstrument or otherwise subject to any restriction or encumbrance thatrestricts or limits its ability to make dividend payments or otherdistributions in respect of its Capital Stock to the Borrower or any Subsidiaryor to transfer any of its assets or properties to the Borrower or any otherSubsidiary in each case other than existing under or by reason of the FinanceDocuments or Applicable Law.

 

## **18.15**                    FinancialStatements

## ** **

### (a)                                  Theaudited and unaudited financial statements delivered pursuant to Schedule 2 (*Conditions Precedent*) are complete and correct and fairlypresent in all material respects on a Consolidated basis the assets,liabilities and financial position of the Borrower and its Subsidiaries as atsuch dates, and the results of the operations and changes of financial positionfor the periods that ended (other than the absence of footnotes and customaryyear-end adjustments for unaudited financial statements).

###  

### (b)                                 Allsuch financial statements, including the related schedules and notes thereto,have been prepared in accordance with GAAP.

###  

### (c)                                  Suchfinancial statements show all material indebtedness and other materialliabilities, direct or contingent, of the Borrower and its Subsidiaries as ofthe dates thereof, including material liabilities for taxes, materialcommitments, and Financial Indebtedness, in each case, to the extent requiredto be disclosed under GAAP.

###  

## **18.16**                    NoMaterial Adverse Change

## ** **

Since 11 May 2009, there has beenno material adverse change in the properties, business, operations, prospectsor condition (financial or otherwise) of the Borrower and its Subsidiariestaken as a whole and no event has occurred or condition arisen that couldreasonably be expected to have a Material Adverse Effect.

 

## **18.17**                    Solvency

## ** **

As of the date of this Agreement and aftergiving effect to each Loan, each Obligor will be Solvent.

 

## **18.18**                    Titlesto Properties

## ** **

Each of the Borrower and its Subsidiarieshas such title to the real property owned or leased by it as necessary to theconduct of its business as currently conducted and valid and legal title to allof its personal property and assets, including, but not limited to, thosereflected on the Consolidated balance sheets of the Borrower and itsSubsidiaries delivered pursuant to Schedule 2 (*ConditionsPrecedent*), except those which have been disposed of by the Borroweror its Subsidiaries subsequent to the dates of such balance sheets whichdispositions have been in the ordinary course of trading or as otherwiseexpressly permitted under this Agreement.

 

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## **18.19**                    Insurance

## ** **

The properties of the Borrower and itsSubsidiaries are insured with financially sound and reputable insurancecompanies not Affiliates of the Borrower, in such amounts, with suchdeductibles and covering such risks as required by this Agreement.

 

## **18.20**                    Liens

## ** **

From FinancialClose,

 

### (a)                                  noneof the properties and assets of the Borrower or any Subsidiary thereof issubject to any Lien, except Permitted Liens; and

###  

### (b)                                 neitherthe Borrower nor any Subsidiary thereof has signed any financing statement orany security agreement authorising any secured party thereunder to file anyfinancing statements, except to perfect Permitted Liens.

###  

## **18.21**                    FinancialIndebtedness and Guarantee Obligations

## ** **

### (a)                                  Schedule14 (*Financial Indebtedness and Guarantee Obligations*) isa complete and correct listing of all Financial Indebtedness and GuaranteeObligations of the Borrower and its Subsidiaries as of the date of thisAgreement in excess of one million Dollars (US$1,000,000).

###  

### (b)                                 Asof the date of this Agreement, the amount of all Financial Indebtedness andGuarantee Obligations of the Borrower and its Subsidiaries (and not set out inSchedule 14 (*Financial Indebtedness and Guarantee Obligations*))is no greater than one million Dollars (US$1,000,000).

###  

### (c)                                  TheBorrower and its Subsidiaries have performed and are in compliance with all ofthe material terms of such Financial Indebtedness and Guarantee Obligations andall instruments and agreements relating thereto, and no default or event ofdefault, or event or condition which with notice or lapse of time or both wouldconstitute such a default or event of default on the part of the Borrower orany of its Subsidiaries exists with respect to any such Financial Indebtednessor Guarantee Obligations.

###  

## **18.22**                    CommunicationLicences

## ** **

### (a)                                  Schedule15 (*Communication Licences*) accurately andcompletely lists, as of the date of this Agreement, for the Borrower and eachof its Subsidiaries, all Material Communications Licences (and the expirationdates thereof) granted or assigned to the Borrower or any Subsidiary,including, without limitation for:

###  

#### (i)                                     eachSatellite owned by the Borrower or any of its Subsidiaries, all space stationlicences or authorisations, including placement on the FCC’s “*Permitted Space Station List*” for operation of Satelliteswith C-band links issued or granted by the FCC to the Borrower or any of itsSubsidiaries; and

####  

#### (ii)                                  foreach Earth Station of the Borrower and its Subsidiaries.

 

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### (b)                                 TheCommunications Licences set out in Schedule 15 (*CommunicationLicences*) include all material authorisations, licences and permitsissued by the FCC or any other Governmental Authority that are required ornecessary for the operation and the conduct of the business of the Borrower andits Subsidiaries, as now conducted.  EachCommunications Licence is expected to be renewed and the Borrower knows of noreason why such Communications Licence would not be renewed.  The Borrower and its Subsidiaries have filedall material applications with the FCC necessary for the Launch and operationof the Borrower’s second-generation satellite constellation and the Borrower isnot aware of any reason why such applications should not be granted.

###  

### (c)                                  EachCommunications Licence set out in Schedule 15 (*CommunicationLicences*) is issued in the name of the Subsidiary indicated on suchschedule.

###  

### (d)                                 EachMaterial Communications Licence is in full force and effect.

###  

### (e)                                  TheBorrower has no knowledge of any condition imposed by the FCC or any otherGovernmental Authority as part of any Communications Licence which is neitherset forth on the face thereof as issued by the FCC or any other GovernmentalAuthority nor contained in the rules and regulations of the FCC or anyother Governmental Authority applicable generally to telecommunicationsactivities of the type, nature, class or location of the activities inquestion.

###  

### (f)                                    Eachapplicable location of the Borrower or any of its Subsidiaries has been and isbeing operated in all material respects in accordance with the terms andconditions of the Communications Licence applicable to it and Applicable Law,including but not limited to the Communications Act and the rules andregulations issues thereunder.

###  

### (g)                                 Noproceedings are pending or, to the Borrower’s knowledge are, threatened whichmay result in the loss, revocation, modification, non-renewal, suspension ortermination of any Communications Licence, the issuance of any cease and desistorder or the imposition of any fines, forfeitures or other administrativeactions by the FCC or any other Governmental Authority with respect to anyoperations of the Borrower and its Subsidiaries, which in any case couldreasonably be expected to have a Material Adverse Effect.

###  

## **18.23**                    Satellites

## ** **

### (a)                                  AllSatellites are owned by the Borrower or a Subsidiary that is an Obligor.

###  

### (b)                                 Schedule16 (*Satellites*) accurately and completelylists as of the date of this Agreement, the flight model number of each of theSatellites owned by the Borrower and its Subsidiaries, and for each Satellitewhether it is operational in-orbit or spare in-orbit.

 

87

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## **18.24**                    Delayin Construction / Launch Slot

## ** **

As of the dateof this Agreement, the Borrower is not aware:

 

### (a)                                  ofany delay which has a duration exceeding three (3) Months, to theconstruction and scheduled delivery dates of the Satellites under the SatelliteConstruction Contract (as delivered pursuant to Schedule 2 (*Conditions Precedent*)); and

###  

### (b)                                 ofany event which could reasonably be expected to result in the last Launchoccurring later than the fourth fiscal quarter of 2010.

###  

## **18.25**                    PariPassu Ranking

## ** **

Each Obligor’s payment obligations underthe Finance Documents rank at least *pari passu* withthe claims of all its unsecured and unsubordinated creditors, except forobligations mandatorily preferred by law applying to companies generally.

 

## **18.26**                    OFAC

## ** **

### (a)                                  Noneof the Borrower, any Subsidiary of the Borrower or any Affiliate of theBorrower:

###  

#### (i)                                     is aSanctioned Person;

####  

#### (ii)                                  hasmore than ten *per cent.*(10%) of its assets in Sanctioned Entities; or

####  

#### (iii)                               derivesmore than ten *per cent.*(10%) of its operating income from investments in, or transactions withSanctioned Persons or Sanctioned Entities.

####  

### (b)                                 Theproceeds of any Loan will not be used and have not been used to fund anyoperations in, finance any investments or activities in, or make any paymentsto, a Sanctioned Person or a Sanctioned Entity.

###  

## **18.27**                    GoverningLaw and Enforcement

## ** **

### (a)                                  Subjectto the Reservations, the choice of governing law of the Finance Documents willbe recognised and enforced in its jurisdiction of incorporation.

###  

### (b)                                 Subjectto the Reservations, any judgment obtained in relation to a Finance Document inthe jurisdiction of the governing law of that Finance Document will berecognised and enforced in its jurisdiction of incorporation.

###  

## **18.28**                    NoFiling or Stamp Taxes

## ** **

Under:

 

### (a)                                  thelaws of the Borrower’s or any of its Subsidiaries jurisdiction ofincorporation; and

 

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###  

### (b)                                 thefederal laws of the United States,

###  

it is not necessary that the FinanceDocuments be filed, recorded or enrolled with any court or other authority inthat jurisdiction or that any stamp, registration, notarial or similar Taxes orfees be paid on or in relation to the Finance Documents or the transactionscontemplated by the Finance Documents other than:

 

#### (i)                                    deliveryof proper financing statements (Form UCC-1 or such other financingstatements or similar notices as shall be required by Applicable Law) fullyexecuted for filing under the UCC or other appropriate filing offices of eachjurisdiction as may be necessary to perfect a Lien purported to be created by aSecurity Document; and

####  

#### (ii)                                 anyrecording with the United States Patent and Trademark Office and/orCopyright Office to perfect the Liens on intellectual property created by theCollateral Agreement,

####  

which registrations, filings and fees willbe made and paid promptly after the date of the relevant Finance Document.

 

## **18.29**                    Deductionof Tax

## ** **

It is not required to make any deductionfor or on account of Tax from any payment it may make under any FinanceDocument.

 

## **18.30**                    NoDefault

## ** **

### (a)                                  NoEvent of Default and, on the date of this Agreement, no Default is continuingor is reasonably likely to result from the making of any Loan or the entryinto, the performance of, or any transaction contemplated by, any TransactionDocument.

###  

### (b)                                 Noother event or circumstance is outstanding which constitutes (or, with theexpiry of a grace period, the giving of notice, the making of any determinationor any combination of any of the foregoing, would constitute) a default ortermination event (however described) under the Transaction Documents, whichhas not been waived by the relevant parties hereto.

###  

### (c)                                  No otherevent or circumstance is outstanding which constitutes (or, with the expiry ofa grace period, the giving of notice, the making of any determination or anycombination of any of the foregoing, would constitute) a default or terminationevent (however described) under any other agreement or instrument which isbinding on it or any of its Subsidiaries or to which its (or any of itsSubsidiaries) assets are subject which has or is reasonably likely to have aMaterial Adverse Effect.

###  

## **18.31**                   NoMisleading Information

## ** **

### (a)                                  Allfactual information provided in writing by it to the Lenders was true, completeand accurate in all material respects to the best of its knowledge and beliefas at the date it was provided or as at the date (if any) at which it is stated.

 

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### (b)                                 Allfinancial projections provided by it have been prepared on the basis of recenthistorical information and on the basis of reasonable assumptions (in the caseof projections made by third parties, to the best of its knowledge and belief).

###  

### (c)                                  Tothe best of its knowledge and belief, no material information has been given orwithheld by it that results in any information provided to the Lenders by itbeing incomplete, untrue or misleading in any material respect.

###  

## **18.32**                    GroupStructure Chart

## ** **

The Group Structure Chart set out at Schedule 23 (*GroupStructure Chart*) istrue, complete and accurate in all material respects.

 

## **18.33**                    NoImmunity

## ** **

None of the members of the Group nor any ofits or their assets is entitled to immunity from suit, execution, attachment orother legal process.

 

## **18.34**                    TaxReturns and Payments

## ** **

### (a)                                 Eachof the Borrower and its Subsidiaries has timely filed with the appropriatetaxing authority, all returns, statements, forms and reports for taxes (the “**Returns**”) required to be filed by or withrespect to the income, properties or operations of the Borrower and/or any ofits Subsidiaries.

###  

### (b)                                TheReturns accurately reflect in all material respects all liability for taxes of theBorrower and its Subsidiaries as a whole for the periods covered thereby.

###  

### (c)                                 TheBorrower and each of its Subsidiaries have paid all taxes payable by them otherthan those contested in good faith and adequately disclosed and for whichadequate reserves have been established in accordance with generally acceptedaccounting principles.

###  

### (d)                                Thereis no action, suit, proceeding, investigation, audit, or claim now pending or,to the best knowledge of the Borrower or any of its Subsidiaries, threatened byany authority regarding any taxes relating to the Borrower or any of itsSubsidiaries which, if adversely determined, could reasonably be expected tohave a Material Adverse Effect.

###  

### (e)                                 Neitherthe Borrower nor any of its Subsidiaries has entered into an agreement orwaiver or been requested to enter into an agreement or waiver extending anystatute of limitations relating to the payment or collection of taxes of theBorrower or any of its Subsidiaries, or is aware of any circumstances thatwould cause the taxable years or other taxable periods of the Borrower or anyof its Subsidiaries not to be subject to the normally applicable statute oflimitations.

###  

## **18.35**                    CommercialContracts

## ** **

As ofthe date of this Agreement, the Borrower has not exercised:

 

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### (a)                                 theoption to order from the Supplier up to eighteen (18) additional recurringSpacecraft (as such term is defined in the Satellite Construction Contract)pursuant to Article 29(B) (*Options*)of the Satellite Construction Contract; or

###  

### (b)                                theOptional Launches (as such term is defined in the Launch Services Contract)pursuant to the Launch Services Contract.

###  

## **18.36**                    Repetition

## ** **

The Repeating Representations are made bythe Borrower by reference to the facts and circumstances then existing on:

 

### (a)                                 thedate of each Utilisation Request;

###  

### (b)                                eachUtilisation Date; and

###  

### (c)                                 thefirst day of each Interest Period.

###  

# **19.**                              INFORMATION UNDERTAKINGS

# ** **

The undertakings in this Clause 19 (*Information Undertakings*) remain in force from the date ofthis Agreement for so long as any amount is outstanding under the FinanceDocuments or any Commitment is in force. The Borrower will furnish, or cause to be furnished, to the COFACE Agentthe information required by this Clause 19 (*InformationUndertakings*) in sufficient copies for all the Lenders.

 

## **19.1**                          QuarterlyFinancial Statements

## ** **

As soon as practicable and in any eventwithin forty five (45) days after the end of each of the first three (3) fiscalquarters of each Fiscal Year (and in the case of paragraph (e) only,after the end of each fiscal quarter of each Fiscal Year) (or, if the date ofany required public filing is earlier, no later than the date that is the fifthBusiness Day immediately following the date of any required public filingthereof after giving effect to any extensions granted with respect to suchdate):

 

### (a)                                 Form 10-Q;

###  

### (b)                                anunaudited Consolidated balance sheet of the Borrower and its Subsidiaries as ofthe close of such fiscal quarter;

###  

### (c)                                 thenotes (if any) relating to any of the financial statements delivered under thisClause 19.1;

###  

### (d)                                unauditedConsolidated statements of income, retained earnings and cash flows;

###  

### (e)                                 areport with respect to the Borrower’s key performance indicators insubstantially the same form as Schedule 19 (*Key Performance Indicators*);and

 

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### (f)                                   areport containing management’s discussion and analysis of such financialstatements for the fiscal quarter then ended and that portion of the FiscalYear then ended,

###  

all in reasonable detail setting forth incomparative form the corresponding figures as of the end of and for thecorresponding period in the preceding Fiscal Year and prepared by the Borrowerin accordance with GAAP and, if applicable, containing disclosure of the effecton the financial position or results of operations of any change in theapplication of accounting principles and practices during the period, andcertified by the chief financial officer of the Borrower to present fairly inall material respects the financial condition of the Borrower and itsSubsidiaries on a Consolidated basis as of their respective dates and theresults of operations of the Borrower and its Subsidiaries for the respectiveperiods then ended, subject to normal year end adjustments.

 

## **19.2**                          AnnualFinancial Statements

## ** **

### (a)                                  Assoon as practicable and in any event within ninety (90) days after the endof each Fiscal Year (or, if the date of any required public filing is earlier,the date that is no later than the fifth Business Day immediately following thedate of any required public filing thereof after giving effect to anyextensions granted with respect to such date):

###  

#### (i)                                    Form 10-K;

####  

#### (ii)                                 anaudited Consolidated balance sheet of the Borrower and its Subsidiaries as ofthe close of such Fiscal Year;

####  

#### (iii)                              thenotes (if any) relating to any of the financial statements delivered under thisClause 19.2;

####  

#### (iv)                             auditedConsolidated statements of income, retained earnings and cash flows; and

####  

#### (v)                                a reportcontaining management’s discussion and analysis of such financial statementsfor the Fiscal Year then ended,

####  

all in reasonable detail setting forth incomparative form the corresponding figures as of the end of and for thepreceding Fiscal Year and prepared in accordance with GAAP and, if applicable,containing disclosure of the effect on the financial position or results ofoperations of any change in the application of accounting principles andpractices during the year.

 

### (b)                                 Suchannual financial statements shall be audited by the independent certifiedpublic accounting firm separately notified to the COFACE Agent prior to thedate of this Agreement or such other firm notified to the COFACE Agent (andacceptable to the COFACE Agent), and accompanied by a report thereon by suchcertified public accountants that is not qualified with respect to scopelimitations imposed by the Borrower or any of its Subsidiaries or with respectto accounting principles followed by the Borrower or any of its Subsidiariesnot in accordance with GAAP.

 

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## **19.3**                          AnnualBusiness Plan and Financial Projections

## ** **

As soon as practicable and in any eventwithin fifteen (15) days after the beginning of each Fiscal Year duringthe term of this Agreement, a business plan of the Borrower and itsSubsidiaries for the ensuing four (4) fiscal quarters, such plan to beprepared in accordance with GAAP and to include, on a quarterly basis, thefollowing:

 

### (a)                                  informationrelating to the amounts outstanding under the Convertible Notes;

###  

### (b)                                 anoperating and capital budget in respect of the next three (3) succeedingFiscal Years;

###  

### (c)                                  aprojected income statement;

###  

### (d)                                 astatement of cash flows on a three (3) year projected basis (including,calculations (in reasonable detail) demonstrating compliance with each of thefinancial covenants set out in Clause 20 (*FinancialCovenants*)) and balance sheet; and

###  

### (e)                                  areport setting forth management’s operating and financial assumptionsunderlying such projections,

###  

accompanied by a certificate from aResponsible Officer of the Borrower to the effect that, to the best of suchofficer’s knowledge, such projections are estimates made in good faith (basedon reasonable assumptions) of the financial condition and operations of theBorrower and its Subsidiaries for such four (4) fiscal quarter period andin relation to the operating and capital budget, in respect of the next three (3) succeedingFiscal Years.

 

## **19.4**                          ComplianceCertificate

## ** **

At each time:

 

### (a)                                  financialstatements are delivered pursuant to Clause 19.1 (*QuarterlyFinancial Statements*) or Clause 19.2 (*AnnualFinancial Statements*);

###  

### (b)                                 theinformation and other documentation is delivered pursuant to Clause 19.3 (*Annual Business Plan and Financial Projections*); and

###  

### (c)                                  atsuch other times as the COFACE Agent shall reasonably request,

###  

a Compliance Certificate signed by aResponsible Officer, confirming compliance by the Borrower with each of thefinancial covenants set out in Clause 20 (*FinancialCovenants*) together with an Adjusted Consolidated EBITDAReconciliation for the fiscal period covered by such financial statements orinformation (as the case may be).

 

## **19.5**                          OtherReports

## ** **

### (a)                                  Uponrequest by the COFACE Agent, copies of all relevant public documents requiredby its independent public accountants in connection with their auditingfunction, including, without limitation, any management report and anymanagement responses thereto.

 

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### (b)                                 Noless than annually, and at any time upon the reasonable request of the COFACEAgent, a Satellite health report prepared by the Borrower and certified by aResponsible Officer setting forth the operational status of each Satellite(other than Satellites yet to be launched) based on reasonable assumptions ofthe Borrower made in good faith and including such information with respect tothe projected solar array life based on the total Satellite power requirements,projected battery life based on total Satellite power requirements, projectedSatellite life, information concerning the availability of spare Satellites andsuch other information pertinent to the operation of such Satellite as theCOFACE Agent may reasonably request, it being understood that to the extentthat any such Satellite health report contains any forward looking statements,estimates or projections, such statements, estimates or projections are subjectto significant uncertainties and contingencies, many of which are beyond theBorrower’s control, and no assurance can be given that such forward lookingstatements, estimates or projections will be realised, *providedthat* nothing in this paragraph (b) shall require theBorrower to delivery any information to any Lender to the extent delivery ofsuch information is restricted by applicable law or regulation.

###  

### (c)                                  Noless than quarterly, a Satellite health report prepared by the Borrower andcertified by a Responsible Officer including the following:

###  

#### (i)                                    detailsof the operational status of each Satellite (other than Satellites yet to belaunched) based on reasonable assumptions of the Borrower made in good faithand in substantially the same form contained in Schedule 30 (*Form of Quarterly Health Report*); and

####  

#### (ii)                                 aletter providing details of any material or unusual events that have occurredwith respect to the Satellites since the delivery to the COFACE Agent of thelast quarterly report.

####  

### (d)                                 Suchother information regarding the operations, business affairs and financialcondition of the Borrower or any of its Subsidiaries as the COFACE Agent or anyLender may reasonably request.

###  

## **19.6**                          Noticeof Litigation and Other Matters

## ** **

Promptly (but in no event later than ten (10) BusinessDays after any Responsible Officer of the Borrower obtains knowledge thereof)written notice of:

 

### (a)                                  alldocuments dispatched by the Borrower to all of its stockholders (or any classthereof) or its creditors generally at the same time as they are dispatched;

###  

### (b)                                 thecommencement of all proceedings and investigations by or before anyGovernmental Authority and all actions and proceedings in any court or beforeany arbitrator against or involving the Borrower or any Subsidiary thereof orany of their respective properties, assets or businesses that if adverselydetermined could reasonably be expected to result in a Material Adverse Effect;

 

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### (c)                                  anynotice of any violation received by the Borrower or any Subsidiary thereof fromany Governmental Authority including, without limitation:

###  

#### (i)                                    anynotice of violation of any Environmental Law and the details of anyenvironmental claim, litigation, arbitration or administrative proceedingswhich are current, threatened or pending against any member of the Group; and

####  

#### (ii)                                 anyother notice of violation which in each case could reasonably be expected tohave a Material Adverse Effect;

####  

### (d)                                 anylabour controversy that has resulted in a strike or other work action againstthe Borrower or any Subsidiary thereof which in each case could reasonably beexpected to have a Material Adverse Effect;

###  

### (e)                                  anyattachment, judgment, lien, levy or order exceeding one million Dollars(US$1,000,000) that has been assessed against the Borrower or any Subsidiarythereof;

###  

### (f)                                    anyclaim for *force majeure*(howsoever described) by aparty under a Commercial Contract;

###  

### (g)                                 detailsof:

###  

#### (i)                                    anydelay which has a duration exceeding three (3) Months, to the constructionand scheduled delivery dates of the Satellites under the Satellite ConstructionContract (as delivered pursuant to Schedule 2 (*Conditions Precedent*));

####  

#### (ii)                                 anyevent which could reasonably be expected to result in the last Launch occurringlater than the fourth fiscal quarter of 2010; and

####  

#### (iii)                              suspension,interruption, cancellation or termination of a Commercial Contract;

####  

### (h)                                 anyamendments or modifications to a Commercial Contract, together with a copy ofsuch amendment;

###  

### (i)                                     anyDefault or Event of Default;

###  

### (j)                                    anyevent which constitutes or which with the passage of time or giving of notice orboth would constitute a default or event of default under any Material Contractto which the Borrower or any of its Subsidiaries is a party or by which theBorrower or any Subsidiary thereof or any of their respective properties may bebound which could reasonably be expected to have a Material Adverse Effect;

###  

### (k)                                 anyunfavourable determination letter from the US Internal Revenue Serviceregarding the qualification of an Employee Benefit Plan under Section 401(a) ofthe Code (along with a copy thereof);

 

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### (l)                                    acopy of each Internal Revenue Service Form 5500 (including theSchedule B or such other schedule as contains actuarial information) filedin respect of a Pension Plan with Unfunded Pension Liabilities;

###  

### (m)                              anyObligor or ERISA Affiliate obtaining knowledge or a reason to know that anyERISA Termination Event has occurred or is reasonably expected to occur, acertificate of any Responsible Officer of the Borrower describing such ERISATermination Event and the action, if any, proposed to be taken with respect tosuch ERISA Termination Event and a copy of any notice filed with the PBGC orthe Internal Revenue Service pertaining to such ERISA termination Event and anynotices received by such Obligor or ERISA Affiliate from the PBGC, any othergovernmental agency or any Multiemployer Plan sponsor with respect thereto;provided that in the case of ERISA Termination Events under paragraph (c) ofthe definition thereof, in no event shall notice be given later than theoccurrence of the ERISA Termination Event;

###  

### (n)                                anyObligor or ERISA Affiliate obtaining knowledge or a reason to know of:

###  

#### (i)                                    amaterial increase in Unfunded Pension Liabilities (taking into account onlyPension Plans with positive Unfunded Pension Liabilities) since the date therepresentations hereunder are given or deemed given, or from any prior notice,as applicable;

####  

#### (ii)                                 theexistence of potential withdrawal liability under Section 4201 of ERISA,if each Obligor and ERISA Affiliate were to withdraw completely from any andall Multiemployer Plans;

####  

#### (iii)                              theadoption of, or the commencement of contributions to, any Pension Plan orMultiemployer Plan by any Obligor or ERISA Affiliate, or

####  

#### (iv)                             theadoption or amendment of any Pension Plan which results in a material increasein contribution obligations of any Obligor or any ERISA Affiliate, a detailedwritten description thereof from any Responsible Officer of the Borrower; and

####  

### (o)                                 if,at any time after the date of this Agreement, any Obligor or any ERISAAffiliate maintains, or contributes to (or incurs an obligation to contributeto), an Employee Benefit Plan or Multiemployer Plan which is not set forth inSchedule 9 (*ERISA Plans*), then theBorrower shall deliver to the COFACE Agent an updated Schedule 9 as soon aspracticable, and in any event within ten (10) days after such Obligor orERISA Affiliate maintains or contributes (or incurs an obligation tocontribute) thereto.

 

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## **19.7**                          NoticesConcerning Communications Licences

## ** **

Promptly (but in no event later than ten (10) BusinessDays after any Responsible Officer of the Borrower obtains knowledge thereof)written notice of:

 

### (a)                                 (i) anycitation, notice of violation or order to show cause issued by the FCC or anyGovernmental Authority with respect to any Material Communications Licence; (ii) ifapplicable, a copy of any notice or application by the Borrower requestingauthority to or notifying the FCC of its intent to cease telecommunicationsoperations for any period in excess of ten (10) days; or (iii) noticeof any other action, proceeding or other dispute, which, if adverselydetermined, could reasonably be expected to result in the loss or revocation ofany Material Communications Licence; and

###  

### (b)                                anylapse, loss, modification, suspension, termination or relinquishment of anyMaterial Communications Licence, permit or other authorisation from the FCC orother Governmental Authority held by the Borrower or any Subsidiary thereof orany failure of the FCC or other Governmental Authority to renew or extend anysuch Material Communications Licence, permit or other authorisation for theusual period thereof and of any complaint against the Borrower or any of itsSubsidiaries or other matter filed with or communicated to the FCC or otherGovernmental Authority.

###  

## **19.8**                          ConvertibleNotes

## ** **

The Borrower shall:

 

### (a)                                  provideto the COFACE Agent upon its request information relating to the amountsoutstanding under the Convertible Notes; and

###  

### (b)                                 promptlyon request, supply to the COFACE Agent such further information regarding theConvertible Notes as any Finance Party through the COFACE Agent may reasonablyrequest.

###  

## **19.9**                          FinalIn-Orbit Acceptance

## ** **

The Borrower shall:

 

### (a)                                  provideto the COFACE Agent a certificate signedby a Responsible Officer confirming that Final In-Orbit Acceptance has occurred(such certificate to be in form and substance satisfactory to the COFACE Agent)within five (5) Business Days following Final In-Orbit Acceptance; and

###  

### (b)                                 promptlyon request, supply to the COFACE Agent such further information regarding FinalIn-Orbit Acceptance as any Finance Party through the COFACE Agent mayreasonably request.

###  

## **19.10**                    IndividualIn-Orbit Acceptance

## ** **

The Borrower shall provide to the COFACEAgent a certificate signed by aResponsible Officer confirming that, in respect of the relevant Satellite:

 

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(a)                                 thetesting of such Satellite has been completed and the Satellite PerformanceCriteria has been successfully met in respect of the relevant Satellite,promptly after the completion of such tests; and

 

(b)                                 Individual In-Orbit Acceptancehas occurred not later than five (5) days after achieving IndividualIn-Orbit Acceptance.

 

## **19.11**                    EquityCure Contribution

## ** **

TheBorrower shall promptly inform the COFACE Agent when an Equity CureContribution is to be made (including the details of any Equity Issuance orSubordinated Indebtedness being applied for such purpose).

 

## **19.12**                    Useof Websites

## ** **

### (a)                                 The Borrowermay satisfy its obligation under this Agreement to deliver any information inrelation to those Lenders ( the “**WebsiteLenders**”) who accept this method of communication by posting thisinformation onto an electronic website designated by the Borrower and theCOFACE Agent (the “**Designated Website**”)if:

###  

#### (i)                                    theCOFACE Agent expressly agrees (after consultation with each of the Lenders)that it will accept communication of the information by this method;

####  

#### (ii)                                 boththe Borrower and the COFACE Agent are aware of the address of and any relevantpassword specifications for the Designated Website; and

####  

#### (iii)                              theinformation is in a format previously agreed between the Borrower and theCOFACE Agent.

####  

If any Lender (a “**Paper Form Lender**”)does not agree to the delivery of information electronically then the COFACEAgent shall notify the Borrower accordingly and the Borrower shall supply theinformation to the COFACE Agent (in sufficient copies for each Paper Form Lender)in paper form.  In any event the Borrowershall supply the COFACE Agent with at least one (1) copy in paperform of any information required to be provided by it.

 

### (b)                                TheCOFACE Agent shall supply each Website Lender with the address of and anyrelevant password specifications for the Designated Website followingdesignation of that website by the Borrower and the COFACE Agent.

###  

### (c)                                 TheBorrower shall promptly upon becoming aware of its occurrence notify the COFACEAgent if:

###  

#### (i)                                     theDesignated Website cannot be accessed due to technical failure;

####  

#### (ii)                                  thepassword specifications for the Designated Website change;

 

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####  

#### (iii)          anynew information which is required to be provided under this Agreement is postedonto the Designated Website;

####  

#### (iv)          anyexisting information which has been provided under this Agreement and postedonto the Designated Website is amended; or

####  

#### (v)           theBorrower becomes aware that the Designated Website or any information postedonto the Designated Website is or has been infected by any electronic virus orsimilar software.

####  

If theBorrower notifies the COFACE Agent under paragraph (c)(i) orparagraph (c)(v) above, all informationto be provided by the Borrower under this Agreement after the date of thatnotice shall be supplied in paper form unless and until the COFACE Agent andeach Website Lender is satisfied that the circumstances giving rise to thenotification are no longer continuing.

 

### (d)           AnyWebsite Lender may request, through the COFACE Agent, one (1) papercopy of any information required to be provided under this Agreement which isposted onto the Designated Website.  TheBorrower shall comply with any such request within ten (10) Business Days.

###  

## **19.13**       “*Know your Customer*” Checks

## ** **

### (a)           If:

###  

#### (i)            theintroduction of or any change in (or in the interpretation, administration orapplication of) any Applicable Law made after the date of this Agreement;

####  

#### (ii)           anychange in the status of any Obligor after the date of this Agreement; or

####  

#### (iii)          aproposed assignment or transfer by a Lender of any of its rights andobligations under this Agreement to a party that is not a Lender prior to suchassignment or transfer,

####  

obliges theCOFACE Agent or any Lender (or, in the case of paragraph (iii) above,any prospective new Lender) to comply with “*know your customer*”or similar identification procedures in circumstances where the necessaryinformation is not already available to it, the Borrower shall procure thateach Obligor shall promptly upon the request of the COFACE Agent or any Lendersupply, or procure the supply of, such documentation and other evidence as isreasonably requested by the COFACE Agent (for itself or on behalf of anyLender) or any Lender (for itself or, in the case of the event described inparagraph (iii) above, on behalf of any prospective new Lender) inorder for the COFACE Agent, such Lender or, in the case of the event describedin paragraph (iii) above, any prospective new Lender to carry out andbe satisfied it has complied with all necessary “*know yourcustomer*” or other similar checks under all Applicable Laws pursuantto the transactions contemplated in the Finance Documents.

 

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### (b)           EachLender shall promptly upon the request of the COFACE Agent supply, or procurethe supply of, such documentation and other evidence as is reasonably requestedby the COFACE Agent (for itself) in order for the COFACE Agent to carry out andbe satisfied it has complied with all necessary “*know yourcustomer*” or other similar checks under all Applicable Laws pursuantto the transactions contemplated in the Finance Documents.

## ** **

## **19.14**       LastLaunch

## ** **

The Borrowershall:

 

### (a)           provideto the COFACE Agent a certificate signedby a Responsible Officer confirming the date on which the last Launch hasoccurred (such certificate to be in form and substance satisfactory to theCOFACE Agent) within five (5) Business Days following last Launch; and

###  

### (b)           promptlyon request, supply to the COFACE Agent such further information regarding lastLaunch as any Finance Party through the COFACE Agent may reasonably request.

###  

## **20.**          FINANCIAL COVENANTS

# ** **

## **20.1**         Maximum CovenantCapital Expenditures

## ** **

The Borrowerand its Subsidiaries on a Consolidated basis will not permit the aggregateamount of all Covenant Capital Expenditures to exceed the amount agreed betweenthe Borrower and the COFACE Agent set forth below in the following FiscalYears:

 
| 2009 |   | US$391,000,000 |   |
|------|--------|----------------|--------|
| 2010 |   | US$234,000,000 |   |

 

*providedthat*,**if in any Fiscal Year the Covenant Capital Expendituresreferred to above are not met, any excess amounts may be credited to permittedCovenant Capital Expenditures for the next Fiscal Year.

 

## **20.2**         Minimum Liquidity

## ** **

Following theContingent Equity Release Date, maintain a minimum Liquidity of five millionDollars (US$5,000,000).

 

## **20.3**         AdjustedConsolidated EBITDA

## ** **

The Borrowershall ensure that the Adjusted Consolidated EBITDA in respect of any RelevantPeriod (including (without double-counting) in the calculation of AdjustedConsolidated EBITDA any Equity Cure Contribution made during such period andthe amount of any prior Equity Cure Contribution that has not been required tobe counted in the calculation of Adjusted Consolidated EBITDA to enable theBorrower to achieve the amount set out in column 2 (*Column 2 —Amount*) for any prior Relevant Period, *providedthat* no part of any Equity Cure Contribution may be included in thecalculation of the Adjusted Consolidated EBITDA in any subsequent 

 

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RelevantPeriod if the proceeds of such Equity Cure Contribution has been so taken intoaccount in any such calculation for any two (2) prior Relevant Periods)specified in column 1 (*Column 1 — RelevantPeriod*) below shall not be less than the amount set out incolumn 2 (*Column 2 — Amount*) belowopposite that Relevant Period.

 
| **Column 1  - Relevant Period**                                                              | ** ** | **Column 2 – Amount** | ** **  |
|---------------------------------------------------------------------------------------------------|------------|---------------------------------|-------------|
| Relevant Period  commencing on 1 January 2009 and expiring  31 December 2009. |       | US$                             | (25,000,000 | ) |
| Relevant Period  commencing on 1 July 2009 and expiring 30 June 2010.         |       | US$                             | (21,000,000 | ) |
| Relevant Period  commencing on 1 January 2010 and expiring  31 December 2010. |       | US$                             | (10,000,000 | ) |
| Relevant Period  commencing on 1 July 2010 and expiring 30 June 2011.         |       | US$                             | 10,000,000  |   |
| Relevant Period  commencing on 1 January 2011 and expiring  31 December 2011. |       | US$                             | 25,000,000  |   |
| Relevant Period  commencing on 1 July 2011 and expiring 30 June 2012.         |       | US$                             | 35,000,000  |   |
| Relevant Period  commencing on 1 January 2012 and expiring  31 December 2012. |       | US$                             | 55,000,000  |   |
| Relevant Period  commencing on 1 July 2012 and expiring 30 June 2013.         |       | US$                             | 65,000,000  |   |
| Relevant Period  commencing on 1 January 2013 and expiring 31 December 2013.  |       | US$                             | 78,000,000  |   |

## ** **

## **20.4**         Debt ServiceCoverage Ratio

## ** **

The Borrowershall ensure that the Debt Service Coverage Ratio in respect of any RelevantPeriod (including (without double-counting) any Equity Cure Contribution madein accordance with Clause 23.2(c) (*Financial Covenants*)*provided that* any Equity CureContribution shall only be counted in the calculation of Liquidity for suchpurpose) specified in column 1 (*Column 1 — RelevantPeriod*) below shall not be less than the ratio set out in column 2(*Column 2 — Ratio*) below oppositethat Relevant Period.

 
| **Column 1  - Relevant Period**                                                              | ** ** | **Column 2 – Ratio** | ** ** |
|---------------------------------------------------------------------------------------------------|------------|--------------------------------|------------|
| Relevant Period  commencing on 1 January 2011 and expiring  31 December 2011. |       | 1.00:1                         |       |
| Relevant Period  commencing on 1 July 2011 and expiring 30 June 2012.         |       | 1.00:1                         |       |
| Relevant Period  commencing on 1 January 2012 and expiring  31 December 2012. |       | 1.00:1                         |       |

 

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| **Column 1  - Relevant Period**                                                              | ** ** | **Column 2 – Ratio** | ** ** |
|---------------------------------------------------------------------------------------------------|------------|--------------------------------|------------|
| Relevant Period  commencing on 1 July 2012 and expiring 30 June 2013.         |       | 1.05:1                         |       |
| Relevant Period  commencing on 1 January 2013 and expiring  31 December 2013. |       | 1.10:1                         |       |
| Relevant Period  commencing on 1 July 2013 and expiring 30 June 2014.         |       | 1.15:1                         |       |
| Relevant Period  commencing on 1 January 2014 and expiring 31 December 2014.  |       | 1.20:1                         |       |
| Relevant Period  commencing on 1 July 2014 and expiring 30 June 2015.         |       | 1.25:1                         |       |
| Relevant Period  commencing on 1 January 2015 and expiring  31 December 2015. |       | 1.30:1                         |       |
| Relevant Period  commencing on 1 July 2015 and expiring 30 June 2016.         |       | 1.40:1                         |       |
| Relevant Period  commencing on 1 January 2016 and expiring  31 December 2016. |       | 1.50:1                         |       |
| Relevant Period  commencing on 1 July 2016 and expiring 30 June 2017.         |       | 1.50:1                         |       |
| Relevant Period  commencing on 1 January 2017 and expiring  31 December 2017. |       | 1.50:1                         |       |
| Relevant Period  commencing on 1 July 2017 and expiring 30 June 2018.         |       | 1.50:1                         |       |
| Relevant Period  commencing on 1 January 2018 and expiring  31 December 2018. |       | 1.50:1                         |       |
| Relevant Period  commencing on 1 July 2018 and expiring 30 June 2019.         |       | 1.50:1                         |       |
| Relevant Period  commencing on 1 January 2019 and expiring  31 December 2019. |       | 1.50:1                         |       |

 

## **20.5**         Net Debt toAdjusted Consolidated EBITDA

## ** **

The Borrowershall ensure that the ratio of Net Debt to Adjusted Consolidated EBITDA inrespect of any Relevant Period (and calculated on the ending balance of theRelevant Period (subject to Clause 23.2(c) (*FinancialCovenants*) without double-counting *providedthat* any Equity Cure Contribution shall only be counted in thecalculation of Liquidity for such 

 

102

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purpose))specified in column 1 (*Column 1 — RelevantPeriod*) below shall not be greater than the ratio set out incolumn 2 (*Column 2 — Ratio*) belowopposite that Relevant Period.

 
| **Column 1  - Relevant Period**                                                              | ** ** | **Column 2 – Ratio** | ** ** |
|---------------------------------------------------------------------------------------------------|------------|--------------------------------|------------|
| Relevant Period  commencing on 1 January 2012 and expiring  31 December 2012. |       | 9.90:1                         |       |
| Relevant Period  commencing on 1 July 2012 and expiring 30 June 2013.         |       | 7.25:1                         |       |
| Relevant Period  commencing on 1 January 2013 and expiring  31 December 2013. |       | 5.60:1                         |       |
| Relevant Period  commencing on 1 July 2013 and expiring 30 June 2014.         |       | 4.75:1                         |       |
| Relevant Period  commencing on 1 January 2014 and expiring  31 December 2014. |       | 4.00:1                         |       |
| Relevant Period  commencing on 1 July 2014 and expiring 30 June 2015.         |       | 3.50:1                         |       |
| Relevant Period  commencing on 1 January 2015 and expiring  31 December 2015. |       | 3.00:1                         |       |
| Relevant Period  commencing on 1 July 2015 and expiring 30 June 2016.         |       | 2.75:1                         |       |
| Relevant Period  commencing on 1 January 2016 and expiring  31 December 2016. |       | 2.50:1                         |       |
| Relevant Period  commencing on 1 July 2016 and expiring 30 June 2017.         |       | 2.50:1                         |       |
| Relevant Period  commencing on 1 January 2017 and expiring  31 December 2017. |       | 2.50:1                         |       |
| Relevant Period  commencing on 1 July 2017 and expiring 30 June 2018.         |       | 2.50:1                         |       |
| Relevant Period  commencing on 1 January 2018 and expiring  31 December 2018. |       | 2.50:1                         |       |
| Relevant Period  commencing on 1 July 2018 and expiring 30 June 2019.         |       | 2.50:1                         |       |
| Relevant Period  commencing on 1 January 2019 and expiring  31 December 2019. |       | 2.50:1                         |       |

 

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## **20.6**         Financial Testing

## ** **

The financialcovenants set out in this Clause 20 shall be tested by reference to themost recent set of financial statements delivered for the Relevant Periodpursuant to Clause 19 (*Information Undertakings*).

 

## **21.**          POSITIVE UNDERTAKINGS

# ** **

Theundertakings in this Clause 21 (*Positive Undertakings*)remain in force from the date of this Agreement for so long as any amount isoutstanding under the Finance Documents or any Commitment is in force.  The Borrower shall, and shall cause each ofits Subsidiaries, to comply with the undertakings contained in thisClause 21.

 

## **21.1**         Compliance withLaws

## ** **

### (a)           Observeand remain in compliance in all material respects with all Applicable Laws andmaintain in full force and effect all Authorisations, in each case applicableto the conduct of its business except where the failure to do so could notreasonably be expected to have a Material Adverse Effect.

###  

### (b)           Withoutlimiting the foregoing, the Borrower shall, and shall cause each of its Subsidiariesto, comply in all material respects with all terms and conditions of allCommunications Licences and all federal, state and local laws, all rules,regulations and administrative orders of the FCC, state and local commissionsor authorities, or any other Governmental Authority that are applicable to theBorrower and its Subsidiaries or the telecommunications operations thereof; *provided that* the Borrower or any Subsidiary may dispute ingood faith the applicability or requirements of any such matter so long as suchdispute could not reasonably be expected to have a Material Adverse Effect.

###  

## **21.2**         EnvironmentalLaws

## ** **

In addition toand without limiting the generality of Clause 21.1 (*Compliancewith Laws*):

 

### (a)           complywith, and use reasonable endeavours to ensure such compliance by all tenantsand sub-tenants with all applicable Environmental Laws and obtain, comply withand maintain, and use reasonable endeavours to ensure that all tenants andsubtenants, obtain, comply with and maintain, any and all EnvironmentalPermits;

###  

### (b)           conductand complete all investigations, studies, sampling and testing, and allremedial, removal and other actions required under Environmental Laws, andpromptly comply with all lawful orders and directives of any GovernmentalAuthority regarding Environmental Laws; and

###  

### (c)           defend,indemnify and hold harmless the Finance Parties, and their respective parents,Subsidiaries, Affiliates, employees, agents, officers and directors, from andagainst any claims, demands, penalties, fines, liabilities, settlements,judgments, damages, costs and expenses of whatever kind or nature known or 

 

104

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### unknown, contingent or otherwise, arising out of, orin any way relating to the presence of Hazardous Materials, or the violationof, non-compliance with or liability under any Environmental Laws by theBorrower or any such Subsidiary, or any orders, requirements or demands ofGovernmental Authorities related thereto, including, without limitation,reasonable attorneys’ and consultants’ fees, investigation and laboratory fees,response costs, court costs and litigation expenses, except to the extent thatany of the foregoing directly result from the gross negligence or willfulmisconduct of the party seeking indemnification therefor, as determined by acourt of competent jurisdiction by final non-appealable judgment.

###  

## **21.3**         Compliance withERISA

## ** **

In addition toand without limiting the generality of Clause 21.1 (*Compliancewith Laws*) except where the failure to comply could not,individually or in aggregate, reasonably be expected to have a Material AdverseEffect:

 

### (a)           complywith all material applicable provisions of ERISA and the Code (including Codeprovisions compliance with which is necessary for any intended favourable taxtreatment) and the regulations and published interpretations respectivelythereunder with respect to all Employee Benefit Plans;

###  

### (b)           nottake any action or fail to take action the result of which could be a liabilityto the PBGC or to a Multiemployer Plan;

###  

### (c)           notparticipate in any prohibited transaction that could result in any civilpenalty under ERISA or tax under the Code;

###  

### (d)           operateeach Employee Benefit Plan in such a manner that will not incur any taxliability under *Section 4980B* of the Code orany liability to any qualified beneficiary as defined in *Section 4980B*of the Code; and

###  

### (e)           furnishto the COFACE Agent upon the COFACE Agent’s request such additional informationabout any Employee Benefit Plan as may be reasonably requested by the COFACEAgent.

###  

## **21.4**         Insurance

## ** **

### (a)           Maintaininsurance with insurance companies and/or underwriters rated by S&P or AMBest’s Rating Agency at no lower than A- against such risks and in such amountsas are:

###  

#### (i)            maintainedin accordance with prudent business practice and corporate governance; and

####  

#### (ii)           asmay be required by Applicable Law with amounts and scope of coverage not lessthan those maintained by the Borrower and its Subsidiaries as of the date ofthis Agreement.

####  

### (b)           On thedate of this Agreement and from time to time thereafter the Borrower shalldeliver to the COFACE Agent upon its request information in reasonable 

 

105

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### detail as to the insurance then in effect, stating thenames of the insurance companies, the amounts and rates of the insurance, thedates of the expiration thereof and the properties and risks covered thereby, *provided that*, with respect to paragraph (a)(i) only,neither the Borrower nor any of its Subsidiaries shall be required to obtainany insurance against the risk of loss of any in-orbit Satellites or againstbusiness interruption risks in addition to or with a broader scope of coveragethan is currently maintained by the Borrower and its Subsidiaries as at thedate of this Agreement.

###  

### (c)           Inaddition to, and without limiting the foregoing, the Borrower will, and willcause each of its Subsidiaries to, maintain insurance with respect to theSatellites as follows:

###  

#### (i)            **Property All Risks Insurance**

####  

The Borrowerwill procure or will cause the Supplier to procure at its own expense andmaintain in full force and effect, at all times prior to the Launch of anySatellite purchased by the Borrower or any of its Subsidiaries pursuant to theterms of the Satellite Construction Contract, Property All Risks Insurance uponsuch terms and conditions satisfactory to the COFACE Agent and as arereasonably commercially available and customary in the industry which shallcover any loss of, or damage to, the Satellites and the Satellite and Launchspecific ground components, including all components thereof, at all timesduring the manufacture, testing, storage and transportation of the Satellitesand the Satellite and Launch specific ground components up to the time of Launchof the Satellites and until delivery to the Borrower of the Satellite andLaunch specific ground components.

 

In no eventshall the Borrower or the Supplier be required to maintain or procure PropertyAll Risks Insurance to insure risks that may be required to be insured by, orthat covers the same risk or period of coverage provided by the Supplier as theLaunch Insurance (as defined below).  TheBorrower shall cause the Supplier to name COFACE, the COFACE Agent and theLenders as additional insured but only to the extent of those persons’interests in such Satellites; and

 

#### (ii)           **Launch Insurance**

####  

The Borrowerwill obtain, maintain and keep in full force and effect with respect to eachSatellite that is to be launched, space risk insurance against loss of ordamage to the Satellite such space risk insurance (hereinafter in thisClause 21.4 “**Launch Insurance**”).  Launch Insurance shall be bound no later thanthree (3) Months prior to the then scheduled Launch date of suchSatellite.

 

The LaunchInsurance shall include in-orbit cover providing for:

 

(x)           in the case of the first Launch ofsix (6) Satellites, a six (6) Month stabilisation andperformance test period for such six (6) Satellites; and

 

106

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(y)           in the case of each of the three (3) proposedLaunches following the first Launch, a three (3) Month stabilisation andperformance test period for each Satellite,

 

Such LaunchInsurance shall be in accordance with terms commercially available andreasonably acceptable to the COFACE Agent (acting on the instructions of theMajority Lenders) following consultation with the Insurance Consultant.  The Borrower shall not be obliged to obtain,maintain or keep in force space risk insurance on any Satellite after terminationfor that Satellite under the relevant Launch Insurance policy.  The Launch Insurance for each Satelliteshall:

 

(A)          commence from the time that is theearlier of (i) the time designated by the Launch Services Provider duringthe launch sequence when the command to ignite is intentionally sent to one ofthe motors of the Launch Vehicle (as such term is defined in the LaunchServices Contract) for the purpose of Launch following a planned countdown; and(ii) the time that the cover with respect to the relevant Satellite beinglaunched expires under the insurance procured by the Supplier;

 

(B)          be denominated in Dollars for an amount notless than one hundred and ninety million nine hundred thousand Dollars(US$190,900,000) million until the date of the first successful Launch, andthereafter, to be an amount equal to the higher of (i) the replacementcost of a Satellite (including, the purchase price, Launch and insurances) and (ii) onehundred and forty six million five hundred eighty five thousand and fivehundred Dollars (US$146,585,500));

 

(C)          name the applicable Obligor purchasing theSatellite as the named insured and the Security Agent for and on behalf of theLenders as additional insured and first loss payee in accordance with the LossPayable Clause up to the amount specified in Clause 21.4(e)(ii)(A) andprovide that payments due thereunder shall be payable directly to the SecurityAgent as first loss payee (“**Loss Payee**”)who, prior to an Event of Default, shall transfer to the Collection Account,for and on behalf of the Lenders, who shall receive in full such payments to beapplied in accordance with Clause 10 (*Insurance Proceeds Account*)of the Accounts Agreement, including any accrued unpaid interest; *provided that* claims if any shall be adjusted with the namedinsured and paid to the Loss Payee; and

 

(D)          provide that it will not be cancelled orreduced (other than a reduction from the payment of a claim) or amended withoutnotice to the COFACE Agent.  All suchnotices shall be sent by facsimile and e-mail to the COFACE Agent by theinsurers at the same time such notices are sent to the Borrower and shall beeffective as stated in such notices *provided that*,fifteen 

 

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(15) days’advance written notice shall be given in the event of notice of cancellationfor non-payment of premium.

 

The Borrowershall submit evidence of cover satisfactory to the COFACE Agent (acting inconsultation with the Insurance Consultant), being either the broker’s issuedpolicy documentation cover note, binder or policy documents issued by therelevant Insurer (the “**Launch InsuranceDocumentation**”) to the COFACE Agent at least ninety (90) daysprior to the first scheduled Launch date or, upon written request from the Borrowerand subject to the approval of the COFACE Agent, such later mutually agreeddate based on prevailing market conditions.

 

The Borrowershall obtain from its insurer providing the Launch Insurance waivers of anysubrogation rights against the Supplier (or its sub-contractors) and shallprovide evidence of such waivers to the COFACE Agent sixty (60) days priorto the Launch of any Satellite and shall provide the COFACE Agent with acertificate of such insurance coverage (including the percentage of risks givento such insurer) at the COFACE Agent’s request.

 

#### (iii)          **Third Party Liability Insurance**

####  

The Borrowershall:

 

##### (A)          causethe Supplier to subscribe before Launch and/or maintain in full force andeffect a third party liability insurance for liabilities arising from bodilyinjury and loss or damage to third party property (“**Third Party Liability Insurance**”);

#####  

##### (B)          causethe Launch Services Provider to subscribe for and maintain Third PartyLiability Insurance coverage for liabilities arising from bodily injury andloss or damage to third party property caused by Satellites after Launch in anamount on an annual basis of not less than an aggregate amount equal to:

#####  

(aa)         sixty million nine hundred and eightythousand Euros (€60,980,000) in respect of a Launch from the Kourou launchsite;

 

(bb)        one hundred million Dollars(US$100,000,000) in respect of the risks covered under Article 15.2.1(ii) ofthe Launch Services Contract, for Launches from the Baïkonur launch site.

 

in each case,per occurrence, naming COFACE, the COFACE Agent and the Lenders as additionalinsured thereunder.  In accordance withthe Satellite Construction Contract, the Borrower shall use its best efforts tocause the Launch Services Provider to name the Supplier (and itssub-contractors) as

 

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additional insureds under the LaunchServices Provider’s Third Party Liability Insurance; and

 

##### (C)                                cause the Launch Services Provider to submit a copy of the ThirdParty Liability Insurance documentation to the COFACE Agent as soon aspracticable and in any event no less than thirty (30) days prior to thescheduled Launch date for any Launch. Such insurance shall be in full force at the Launch date (as ofIntentional Ignition (as such term is defined in the Launch Services Contract))and shall be maintained for a period equal to the lesser of:

#####  

(aa)                            twelve (12) Months; or

 

(bb)                          so long as all or any part of the LaunchVehicle (as such term is defined in the Launch Services Contract), theSatellite(s) and/or their components remain in orbit.

 

### (d)                                 Each insurance policy shall comply with the Lenders’ requirementsset out in Clause 21.4(e) below and shall be on reasonable terms andconditions and with acceptable exclusions and a reasonable level of deductibleacceptable to the COFACE Agent (acting on the instructions of the MajorityLenders).

###  

### (e)                                  **General Insurance Provisions andRequirements**

###  

The Borrowershall:

 

#### (i)                                     provide, or as appropriate, request the Supplier and/or the LaunchServices Provider to deliver to the COFACE Agent, promptly after issuance of eachrelevant Insurance, certificate(s) of internationally recognised insurancebroker(s) usually involved in space risk insurance and approved by theLenders, confirming that:

####  

##### (A)                              the Property All Risks Insurance, the Launch Insurance and the ThirdParty Liability Insurance, as appropriate, are in full force and effect on thedate they are respectively required to be entered into force,

#####  

##### (B)                                the names and percentages of the relevant insurance companies;

#####  

##### (C)                                the sums insured and expiration dates of such Insurances;

#####  

##### (D)                               the premia for the Property All Risks Insurance, Launch Insuranceand the Third Party Liability Insurances shall be payable by the Borrower, theSupplier and the Launch Services Provider, as applicable, in accordance withthe terms of credit agreed for each such Insurance; and

#####  

##### (E)                                 all premia due at the date of such certificate have been paid infull.

#####  

##### 109

##### 

####  

#### (ii)                                  use reasonable efforts (having regard to the terms which arereasonably commercially available in the insurance market) to obtain agreementto incorporate in the Insurances the following provisions or provisionssubstantially similar in content:

####  

##### (A)                              the insurers, either directly or via the insurance broker, and thebroker shall also advise the COFACE Agent (by facsimile and by e-mail) of anyloss or of any default in the payment of any premium and of any event other actor omission on the part of the Borrower, the Supplier and/or the Launch ServiceProvider, as applicable, of which the broker or the insurers have knowledge andwhich might result in the invalidation, the lapse or the cancellation in wholeor in part of such Insurance;

#####  

##### (B)                                the COFACE Agent and/or the Lenders shall have the right (withoutany obligation) to pay the insurance premia if the relevant party fails to ordelays in making any such payment within the time periods specified in therelevant insurance policies.  If anypayment of the premia is effected by the COFACE Agent and/or the Lenders, theBorrower shall on demand reimburse the COFACE Agent and/or the Lenders theamount of any premia so paid and all related costs and expenses;

#####  

##### (C)                                if the Borrower, the Supplier and/or the Launch Services Provider(as applicable) fails or delays in filing any notice of proof of loss, theCOFACE Agent shall have the right to join the Borrower, the Supplier and/or theLaunch Services Provider (as applicable) in submitting a notice of proof of anyloss within the time periods specified in the applicable insurance policies;

#####  

##### (D)                               the insurers waive:

#####  

(aa)                            all rights of set-off and counterclaimagainst COFACE, the COFACE Agent and the Lenders in connection with theirrights to make payments under such insurance; and

 

(bb)                          all rights of subrogation to the rights ofthe COFACE Agent and the Lenders against the Borrower;

 

##### (E)                                 the insurance be primary and not excess to or contributory to anyinsurance or self-insurance maintained by the Lenders;

#####  

##### (F)                                 the Insurances shall not be permitted to lapse or to be cancelled,without written notice being given by facsimile and e-mail to the COFACE Agentat the same time such notices are sent to the Borrower and shall be effectiveas stated in such notices *provided that*,fifteen (15) days’ advance written notice shall be given by the Borrowerin the event of notice of cancellation for non-payment of premium; and

#####  

##### 110

##### 

#####  

##### (G)                                the insurers will undertake, not to make any material modificationor amendment to the terms of such insurance policies without the prior writtenconsent of the COFACE Agent (acting on the instructions of all theLenders).  For the purpose of thisparagraph (G), material modification means a modification such that theinsurance as modified would not meet any longer the terms and conditions setout in this Agreement.

#####  

## **21.5**                          Additional Domestic Subsidiaries

## ** **

Notify theCOFACE Agent of the creation or acquisition of any Domestic Subsidiary andpromptly thereafter (and in any event within sixty (60) days), cause suchperson to:

 

### (a)                                  become a Subsidiary Guarantor by delivering to the COFACE Agent aduly executed Guarantee Agreement or such other document as the COFACE Agentshall deem appropriate for such purpose;

###  

### (b)                                 pledge a security interest in all Collateral owned by suchSubsidiary (*provided that* if such Collateralconsists of Capital Stock of a Foreign Subsidiary, such security interest willbe limited to sixty-five *per cent.* (65%)of such Capital Stock (subject to the provisions of Clause 3.6 (*Foreign Subsidiaries Security*) of the Stock PledgeAgreement)) by delivering to the COFACE Agent a duly executed supplement toeach Security Document or such other document as the COFACE Agent shall deemappropriate for such purpose and comply with the terms of each SecurityDocument;

###  

### (c)                                  deliver to the COFACE Agent such documents and certificates referredto in Schedule 2 (*Conditions Precedent*) as may bereasonably requested by the COFACE Agent;

###  

### (d)                                 deliver to the COFACE Agent such original Capital Stock or othercertificates and stock or other transfer powers evidencing the Capital Stock ofsuch person;

###  

### (e)                                  deliver to the COFACE Agent such updated Schedules to the FinanceDocuments as requested by the COFACE Agent with respect to such person; and

###  

### (f)                                    deliver to the COFACE Agent such other documents as may bereasonably requested by the COFACE Agent (including, any “*know yourcustomer*” information), all in form, content and scope reasonablysatisfactory to the COFACE Agent.

###  

### 111

### 

###  

## **21.6**                          Additional Foreign Subsidiaries

## ** **

Notify theCOFACE Agent at the time that any person becomes a Foreign Subsidiary of theBorrower or any Subsidiary, and promptly thereafter (and in any event withinsixty (60) days after notification):

 

### (a)                                  with respect to any Subsidiary that is directly owned by an Obligor,cause the Borrower or the applicable Subsidiary to deliver to the COFACE Agenta Security Document pledging sixty five *per cent.***(65%) of the total outstanding Capital Stock of such newForeign Subsidiary (subject to the provisions of Clause 3.6 (*Foreign Subsidiaries Security*) of the Stock PledgeAgreement) and a consent thereto executed by such new Foreign Subsidiary(including, without limitation, if applicable, original stock certificates (orthe equivalent thereof pursuant to the Applicable Laws and practices of anyrelevant foreign jurisdiction) evidencing that the Capital Stock of such newForeign Subsidiary, together with an appropriate undated stock power for eachcertificate duly executed in blank by the registered owner thereof);

###  

### (b)                                 cause such person to deliver to the COFACE Agent such documents andcertificates referred to in Schedule 2 (*Conditions Precedent*) as may be reasonably requested by theCOFACE Agent;

###  

### (c)                                  cause the Borrower to deliver to the COFACE Agent such updatedSchedules to the Finance Documents as requested by the COFACE Agent with regardto such person; and

###  

### (d)                                 cause such person to deliver to the COFACE Agent such otherdocuments as may be reasonably requested by the COFACE Agent, all in form, contentand scope reasonably satisfactory to the COFACE Agent.

###  

## **21.7**                          Additional Communications Licences

## ** **

Notify the COFACE Agent within thirty(30) days after the acquisition of any Material Communications Licence andcause any Communications Licence issued by the FCC that is acquired by theBorrower or any Subsidiary thereof after the date of this Agreement to be heldby a Licence Subsidiary.

 

## **21.8**                          Owned Real Property

## ** **

As soon aspractical, and in any event within thirty (30) days following FinancialClose (as such date may be extended by the COFACE Agent in its reasonablediscretion), or at such later time as may be provided below, with respect toall owned real property (to the extent located in the United States) ofthe Borrower or any of the other Subsidiaries as of the date of this Agreement:

 

### (a)                                  **Mortgages**

###  

the COFACE Agent shall have received a dulyauthorised, executed and delivered Mortgage in form and substance reasonablysatisfactory to the COFACE Agent;

 

112

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### (b)                                 **Title Insurance**

###  

the COFACE Agent shall have received uponits written request therefor a marked-up commitment for a policy of titleinsurance, insuring the Finance Parties’ first priority Liens and showing noLiens (other than those Liens set out in items 7 and 8 of Schedule 17 (*Existing Liens*)), prior to the Finance Parties’ Liens otherthan for *ad valorem* taxes not yet due andpayable, with title insurance companies acceptable to the COFACE Agent on theproperty subject to a Mortgage with the final title insurance policy, beingdelivered within sixty (60) days after the date of this Agreement, as suchdate may be extended by the COFACE Agent in its reasonable discretion.  Further, the Borrower agrees to provide orobtain any customary affidavits and indemnities as may be required or necessaryto obtain title insurance satisfactory to the COFACE Agent;

###  

### (c)                                  **Title Exceptions**

###  

theCOFACE Agent shall have received upon its written request therefor copies ofall recorded documents creating exceptions to the title policy referred to inClause 21.8(a) (*Mortgages*);

 

### (d)                                 **Matters Relating to Flood Hazard Properties**

###  

the COFACE Agent shall have received uponits written request therefor a certification from the National Research Center,or any successor agency thereto, regarding each parcel of real property subjectto a Mortgage; and

 

### (e)                                  **Other Real Property Information**

###  

the COFACE Agent shall have received suchother certificates, documents and information as are reasonably requested bythe COFACE Agent, including, without limitation, engineering and structuralreports, permanent certificates of occupancy and evidence of zoning compliance,each in form and substance satisfactory to the COFACE Agent.

 

## **21.9**                          Leased Real Property

## ** **

The Borrower shall use reasonable effortsto cause within thirty (30) days following the written request therefor bythe COFACE Agent (as such date may be extended by the COFACE Agent in itsreasonable discretion), with respect to all leased real property (to the extentlocated in the United States) of the Borrower or any of its Subsidiariesas of the date of this Agreement, the COFACE Agent to have received a dulyauthorized, executed and delivered collateral assignment of lease and relatedlandlord agreement, in each case, in form and substance satisfactory thereto.

 

## **21.10**                    After Acquired Real Property Collateral

## ** **

Notify theCOFACE Agent, within ten (10) Business Days after the acquisition of anyowned or leased real property by any Obligor that is not subject to theexisting Security Documents, and within ninety (90) days following requestby the COFACE Agent, deliver or, in the case of leased real property, usereasonable efforts to deliver,

 

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thecorresponding documents, instruments and information required to be deliveredpursuant to:

 

### (a)                                  Clause 21.8 (*Owned Real Property*)if such real property is owned; or

###  

### (b)                                 Clause 21.9 (*Leased Real Property*)if such real property is leased.

###  

## **21.11**                    Hedging Agreements

## ** **

Not later than ninety (90) days afterthe end of any fiscal quarter during which more than twenty five *per cent.* (25%) of revenues isoriginally denominated in a single currency other than Dollars or CanadianDollars, execute foreign currency exchange or swap Hedging Agreements with theOriginal Lenders for such currency on terms and conditions reasonablyacceptable to the COFACE Agent.

## ** **

## **21.12**                    Taxation

## ** **

### (a)                                  Each Obligor shall (and the Borrower shall ensure that each memberof the Group will) pay and discharge all Taxes imposed upon it or its assetswithin the time period allowed without incurring penalties unless and only tothe extent that:

###  

#### (i)                                     such payment is being contested in good faith;

####  

#### (ii)                                  adequate reserves are being maintained for those Taxes and the costsrequired to contest them which have been disclosed in its latest financialstatements delivered to the COFACE Agent under Clause 19 (*Information Undertakings*); and

####  

#### (iii)                               such payment can be lawfully withheld and failure to pay those Taxesdoes not have or is not reasonably likely to have a Material Adverse Effect.

####  

### (b)                                 No Obligor may change its residence for Tax purposes.

###  

## **21.13**                    Preservation of Assets

## ** **

The Borrower shall (and shall ensure thateach member of the Group will) maintain in good working order and condition(ordinary wear and tear excepted) all of its assets necessary in the conduct ofits business.

 

## **21.14**                    *Pari Passu*Ranking

## ** **

The Borrowershall (and shall ensure that each Obligor will):

 

### (a)                                  procure that its obligations under the Finance Documents to which itis a party do and will rank at least *pari passu* withall its other present and future unsecured, unsubordinated obligations, savefor obligations preferred by operation of Applicable Law; and

###  

### (b)                                 ensure that at all times the claims of each Finance Party against itunder the Finance Documents to which it is a party rank at least *pari passu* with the

###  

### 114

### 

###  

### claims of all its unsecured creditors savethose whose claims are preferred by any bankruptcy, insolvency, liquidation orsimilar Applicable Laws of general application.

###  

## **21.15**                    Intellectual Property

## ** **

The Borrowershall (and shall ensure that each member of the Group will):

 

### (a)                                  preserve and maintain the subsistence and validity of theIntellectual Property necessary for the business of the relevant Group member;

###  

### (b)                                 use reasonable endeavours to prevent any infringement in anymaterial respect of the Intellectual Property;

###  

### (c)                                  make registrations and pay all registration fees and taxes necessaryto maintain the Intellectual Property in full force and effect and record itsinterest in that Intellectual Property;

###  

### (d)                                 not use or permit the Intellectual Property to be used in a way ortake any step or omit to take any step in respect of that Intellectual Propertywhich may materially and adversely affect the existence or value of theIntellectual Property or imperil the right of any member of the Group to usesuch property; and

###  

### (e)                                  not discontinue the use of the Intellectual Property,

###  

where failure to do so, in the case ofparagraphs (a) and (b) above, or, in the case paragraphs (d) and(e) above, such use, permission to use, omission or discontinuation, isreasonably likely to have a Material Adverse Effect.

 

## **21.16**                    Access

## ** **

If a Defaultis continuing or the COFACE Agent reasonably suspects a Default is continuingor may occur, each Obligor shall, and the Borrower shall ensure that eachmember of the Group will permit the COFACE Agent and/or the Security Agentand/or accountants or other professional advisers and contractors of the COFACEAgent or Security Agent free access at all reasonable times and on reasonablenotice at the risk and cost of the Borrower to:

 

### (a)                                  the premises, assets, books, accounts and records of each member ofthe Group; and

###  

### (b)                                 meet and discuss matters with management of the Group.

###  

### 115

### 

###  

## **21.17**                    Further Assurance

## ** **

### (a)                                  The Borrower shall (and shall procure that each member of the Groupwill) promptly do all such acts or execute all such documents (includingassignments, transfers, mortgages, charges, notices and instructions) as theSecurity Agent may reasonably specify (and in such form as the Security Agentmay reasonably require in favour of the Security Agent or its nominee(s)):

###  

#### (i)                                     to perfect a Lien created or intended to be created under orevidenced by the Security Documents (which may include the execution of amortgage, charge, assignment or other Lien over all or any of the assets whichare, or are intended to be, the subject of the Security Documents) or for theexercise of any rights, powers and remedies of the Security Agent or theFinance Parties provided by or pursuant to the Finance Documents or byApplicable Law;

####  

#### (ii)                                  to confer on the Security Agent or confer on the Finance Parties aLien over any property and assets of the Group located in any jurisdictionequivalent or similar to a Lien intended to be conferred by or pursuant to theSecurity Documents; and

####  

#### (iii)                               to facilitate the realisation of the assets which are, or areintended to be, the subject of a Lien.

####  

### (b)                                 The Borrower shall (and shall procure that each member of the Groupshall) take all such action as is available to it (including making all filingsand registrations) as may be necessary for the purpose of the creation, perfection,protection or maintenance of any Lien conferred or intended to be conferred onthe Security Agent or the Finance Parties by or pursuant to the FinanceDocuments.

###  

## **21.18**                    Payments under the Satellite Construction Contract

## ** **

Allpayments to be made in accordance with Exhibit F of the SatelliteConstruction Contract for the balance of phase 1 and 2 after EDC2 (as such termis defined in the Satellite Construction Contract) shall be invoiced in Eurosby the Supplier and paid in Dollars using the exchange rate set out in theThales Direct Agreement.

 

# **22.**                               NEGATIVE UNDERTAKINGS

# ** **

The undertakings in this Clause 22 (*Negative Undertakings*) remain in force from the date of thisAgreement for so long as any amount is outstanding under the Finance Documentsor any Commitment is in force.  TheBorrower shall, and shall cause each of its Subsidiaries to, comply with theundertakings contained in this Clause 22.

 

## **22.1**                          Limitations on Financial Indebtedness

## ** **

Not create,incur, assume or suffer to exist any Financial Indebtedness except:

 

### (a)                                  the Obligations (excluding any Hedging Obligations permittedpursuant to Clause 22.1(c));

###  

### 116

### 

###  

### (b)                                 Financial Indebtedness incurred in connection with the Interest RateCap Agreement;

###  

### (c)                                  Financial Indebtedness incurred in connection with a HedgingAgreement required pursuant to Clause 21.11 (*HedgingAgreements*);

###  

### (d)                                 Financial Indebtedness existing on the date of this Agreement andnot otherwise permitted under this Clause and set out in Schedule 14 (*Financial Indebtedness andGuarantee Obligations*);

###  

### (e)                                  Guarantee Obligations in favour of the COFACE Agent for the benefitof the COFACE Agent and the Finance Parties;

###  

### (f)                                    unsecured:

###  

#### (i)                                     Subordinated Indebtedness owed by any Obligor to another Obligor;

####  

#### (ii)                                  Subordinated Indebtedness owed by any Obligor to a ForeignSubsidiary;

####  

#### (iii)                               Financial Indebtedness owed by a Foreign Subsidiary to any Obligor; *provided that* the aggregate amount of such FinancialIndebtedness outstanding at any time pursuant to this paragraph (iii) shallnot exceed the Foreign Investment Limitation (calculated without regard toparagraph (b) of the definition of Foreign Investment Limitation andexcluding the Existing Canadian Note) as of any date of determination;

####  

#### (iv)                              Financial Indebtedness owed by a Foreign Subsidiary to anotherForeign Subsidiary; and

####  

#### (v)                                 Guarantee Obligations by the Borrower on behalf of any Obligor orForeign Subsidiary not to exceed one million Dollars (US$1,000,000) inaggregate;

####  

### (g)                                 Financial Indebtedness pursuant to the following paragraphs (i) to(v) (and any extension, renewal, replacement or refinancing thereof, butnot to increase the aggregate principal amount), *providedthat* at the time such Financial Indebtedness is incurred, the COFACEAgent and the Lenders shall have received from the Borrower a ComplianceCertificate in form and substance satisfactory to the COFACE Agent (includingan Adjusted Consolidated EBITDA Reconciliation for the fiscal period covered bysuch Compliance Certificate), demonstrating that, after giving effect to theincurrence of any such Financial Indebtedness, the Borrower will be in *pro forma* compliance with the financial covenants set forthin Clause 20 (*Financial Covenants*)applicable at such time:

###  

#### (i)                                     Financial Indebtedness of the Borrower and its Subsidiaries incurredin connection with Capital Leases and/or purchase money Financial Indebtednessof the Borrower and its Subsidiaries in an aggregate amount not to exceedtwenty five million Dollars (US$25,000,000) on any date of determination;

####  

#### 117

#### 

####  

#### (ii)                                  Financial Indebtedness of a person existing at the time such personbecame a Subsidiary or assets were acquired from such person not exceeding tenmillion Dollars (US$10,000,000), to the extent such Financial Indebtedness wasnot incurred in connection with or in contemplation of, such person becoming aSubsidiary or the acquisition of such assets, which transactions in aggregatesince the date of this Agreement do not exceed at any time twenty five millionDollars (US$25,000,000);

####  

#### (iii)                               Guarantee Obligations with respect to Financial Indebtednesspermitted pursuant to paragraph (g) of this Clause;

####  

#### (iv)                              Financial Indebtedness of Foreign Subsidiaries, not to exceed in theaggregate at any time outstanding two million Dollars (US$2,000,000); and

####  

#### (v)                                 Subordinated Indebtedness not otherwise permitted pursuant to thisClause in an aggregate amount outstanding not to exceed two hundred millionDollars (US$200,000,000) at any time, *provided that*,**no Event of Default has occurred and is continuing andsubject to the prior agreement of an Acceptable Intercreditor Agreement;

####  

### (h)                                 Financial Indebtedness incurred in respect of workers’ compensationclaims, self-insurance obligations, bankers’ acceptances, performance, suretyand similar bonds and completion guarantees provided by the Borrower or one ofits Subsidiaries in the ordinary course of trading, not to exceed in theaggregate at any time outstanding ten million Dollars (US$10,000,000);

###  

### (i)                                     Financial Indebtedness arising from the honouring by a bank or otherfinancial institution of a cheque, draft or similar instrument in the ordinarycourse of trading inadvertently drawn against insufficient funds, *provided however*, *that* suchFinancial Indebtedness is extinguished within five (5) Business Days anddoes not exceed in the aggregate at any time outstanding ten million Dollars(US$10,000,000);

###  

### (j)                                     Financial Indebtedness arising from any agreement by the Borrower orany of its Subsidiaries providing for indemnities, guarantees, purchase priceadjustments, holdbacks, contingency payment obligations based on theperformances of the acquired or disposed assets or similar obligations incurredby any person in connection with the acquisition or disposition of assets orCapital Stock as permitted by this Agreement *providedthat* such Financial Indebtedness does not exceed in the aggregate atany time outstanding ten million Dollars (US$10,000,000); and

###  

### (k)                                  Financial Indebtedness otherwise approved by the COFACE Agent inwriting.

###  

### 118

### 

## ** **

## **22.2**                          Limitationson Liens

## ** **

Not create,incur, assume or suffer to exist, any Lien on or with respect to any of itsassets or properties (including, without limitation, shares of Capital Stock),real or personal, whether now owned or hereafter acquired, except:

 

### (a)                                  Liensof the Security Agent or the COFACE Agent (as the case may be) for the benefitof the Finance Parties under the Finance Documents;

###  

### (b)                                 Liensnot otherwise permitted by this Clause and in existence on the date of thisAgreement and described in Schedule 17 (*Existing Liens*);

###  

### (c)                                  Liensfor taxes, assessments and other governmental charges or levies not yet due oras to which the period of grace if any, related thereto has not expired orwhich are being contested in good faith and by appropriate proceedings ifadequate reserves are maintained to the extent required by GAAP;

###  

### (d)                                 theclaims of materialmen, mechanics, carriers, warehousemen, processors orlandlords for labour, materials, supplies or rentals incurred in the ordinarycourse of trading:

###  

#### (i)                                     whichare not overdue for a period of more than ninety (90) days; or

####  

#### (ii)                                  whichare being contested in good faith and by appropriate proceedings if adequatereserves are maintained to the extent required by GAAP;

###  

### (e)                                  Liensconsisting of deposits or pledges made in the ordinary course of trading inconnection with, or to secure payment of, obligations under workers’compensation, unemployment insurance or similar legislation;

###  

### (f)                                    Liensconstituting encumbrances in the nature of zoning restrictions, easements andrights or restrictions of record on the use of real property, which in theaggregate are not substantial in amount and which do not, in any case, detractfrom the value of such property or impair the use thereof in the ordinaryconduct of trading;

###  

### (g)                                 Liensexisting on any asset of any person at the time such person becomes aSubsidiary or is merged or consolidated with or into a Subsidiary which:

###  

#### (i)                                     werenot created in contemplation of or in connection with such event; and

 

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#### (ii)                                  donot extend to or cover any other property or assets of the Borrower or anySubsidiary, so long as any Financial Indebtedness related to any such Liens arepermitted under Clause 22.1(g)(ii) (*Limitationson Financial Indebtedness*):

####  

### (h)                                 Lienssecuring Financial Indebtedness permitted under Clause 22.1(g)(i) (*Limitations on Financial Indebtedness*)*providedthat*:

###  

#### (i)                                     suchLiens shall be created substantially simultaneously with the acquisition orlease of the related asset;

####  

#### (ii)                                  suchLiens do not at any time encumber any property other than the property financedby such Financial Indebtedness;

####  

#### (iii)                               theamount of Financial Indebtedness secured thereby is not increased; and

####  

#### (iv)                              theprincipal amount of Financial Indebtedness secured by any such Lien shall at notime exceed one hundred *per cent.*(100%) of the original purchase price or lease payment amount of such propertyat the time it was acquired;

####  

### (i)                                     Lienssecuring Financial Indebtedness permitted under Clause 22.1(g)(iv) (*Limitations on Financial Indebtedness*) *providedthat* such liens do not at any time encumber any property other thanthat of the applicable Foreign Subsidiary obliged with respect to suchFinancial Indebtedness;

###  

### (j)                                     Liensto secure the performance of statutory obligations, surety or appeal bonds,performance bonds or other obligations of a like nature incurred in theordinary course of trading;

###  

### (k)                                  Liensincurred or deposits made in the ordinary course of trading in connection withworkers’ compensation, unemployment insurance and other types of socialsecurity;

###  

### (l)                                     rightsof banks to set-off deposits against debts owed to such banks;

###  

### (m)                               Liensupon specific items of inventory or other goods and proceeds of the Borrowerand its Subsidiaries securing their obligations in respect of bankers’acceptances issued or created for the account of any such person to facilitatethe purchase, storage or shipment of such inventory or other goods;

###  

### (n)                                 Liensin favour of customs and revenue authorities arising as a matter of law tosecure payment of customs duties in connection with the importation of goods;

###  

### (o)                                 Liensencumbering property or assets under construction arising from progress orpartial payments by a customer of the Borrower or one of its Subsidiariesrelating to such property or assets;

###  

### (p)                                 Lienson assets that are the subject of a sale and leaseback transaction permitted bythe provisions of this Agreement;

 

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### (q)                                 Lienssecuring Satellite Vendor Obligations, *provided that*such Lien does not attach or encumber any asset or property of the Borrower orany Subsidiary thereof other than the asset or personal property which is thesubject of such obligation or the Escrow Account;

###  

### (r)                                    Lienssecuring Financial Indebtedness permitted by Clause 22.1(b) or (c) (*Limitations on Financial Indebtedness*);

###  

### (s)                                  Liensnot otherwise permitted under this Agreement securing obligations not at anytime exceeding in aggregate five million Dollars (US$5,000,000); and

###  

### (t)                                    Liensotherwise approved by the COFACE Agent in writing.

###  

## **22.3**                          Limitationson Loans, Investments and Acquisitions

## ** **

Not purchase,own, invest in or otherwise acquire, directly or indirectly, any Capital Stock,interests in any partnership or joint venture (including, without limitation,the creation or capitalisation of any Subsidiary), evidence of FinancialIndebtedness or other obligation or security, substantially all or a portion ofthe business or assets of any other person or any other investment or interestwhatsoever in any other person, or make or permit to exist, directly orindirectly, any loans, advances or extensions of credit to, or any investmentin cash or by delivery of property in, any person except:

 

### (a)                                  investments:

###  

#### (i)                                     existingon the date of this Agreement in Subsidiaries existing on the date of thisAgreement;

####  

#### (ii)                                  afterthe date of this Agreement in:

####  

##### (A)                              existingSubsidiaries; and/or

#####  

##### (B)                                Subsidiariesformed after the date of this Agreement, *providedthat*, in each case:

#####  

(x)                                   the Borrower and its Subsidiaries complywith the applicable provisions of Clause 21.5 (*AdditionalDomestic Subsidiaries*); and

 

(y)                                 the amount of any such investments in aForeign Subsidiary shall not exceed the Foreign Investment Limitation as of thedate of such investment;

 

#### (iii)                               theother loans, advances and investments described on Schedule 21 (*Existing Loans, Investments and Advances*) existing on thedate of this Agreement;

####  

#### (iv)                              byany Subsidiary in the Borrower;

 

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### (b)                                 investmentsin:

###  

#### (i)                                     marketabledirect obligations issued or unconditionally guaranteed by theUnited States or any agency thereof maturing within one hundred and twenty(120) days from the date of acquisition thereof;

####  

#### (ii)                                  commercialpaper maturing no more than one hundred and twenty (120) days from thedate of creation thereof and currently having the highest rating obtainablefrom either S&P or Moody’s;

####  

#### (iii)                               certificatesof deposit maturing no more than one hundred and twenty (120) days fromthe date of creation thereof issued by commercial banks incorporated under thelaws of the United States, each having combined capital, surplus andundivided profits of not less than five hundred million Dollars (US$500,000,000)and having a rating of “*A*” or betterfrom either S&P or Moody’s; *provided that*the aggregate amount invested in such certificates of deposit shall not at anytime exceed five million Dollars (US$5,000,000) for any one such certificate ofdeposit and ten million Dollars (US$10,000,000) for any one such bank;

####  

#### (iv)                              timedeposits maturing no more than thirty (30) days from the date of creationthereof with commercial banks or savings banks or savings and loan associationseach having membership either in the FDIC or the deposits of which are insuredby the FDIC and in amounts not exceeding the maximum amounts of insurancethereunder; and

####  

#### (v)                                 otherinvestments permitted by the Borrower’s investment policy as of the date hereofin the form attached at Schedule 27 (*Investment Policy*);

####  

### (c)                                  investmentsby the Borrower or any of its Subsidiaries in the form of PermittedAcquisitions or Permitted Joint Venture Investments; *providedthat* the amount of any such investments in a Foreign Subsidiary (orany entity that would constitute a Foreign Subsidiary if the Borrower or one ofits Subsidiaries owned more than fifty percent (50%) of the outstanding CapitalStock of such entity) shall not exceed the Foreign Investment Limitation as ofthe date of such investment;

###  

### (d)                                 HedgingAgreements permitted pursuant to Clause 21.11 (*HedgingAgreements*) and any Interest Rate Cap Agreement and investments incollateral accounts securing any Hedging Agreements and Interest Rate CapAgreement;

###  

### (e)                                  purchasesof assets in the ordinary course of trading;

###  

### (f)                                    investmentsin the form of loans and advances to employees in the ordinary course oftrading, which, in aggregate, do not exceed at any time five hundred thousandDollars (US$500,000);

 

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### (g)                                 intercompanyFinancial Indebtedness permitted pursuant to Clause 22.1(e) (*Limitations on Financial Indebtedness*);

###  

### (h)                                 loansto one (1) or more officers or other employees of the Borrower or itsSubsidiaries in connection with such officers’ or employees’ acquisition ofCapital Stock of the Borrower in**the ordinary course of trading,consistent with the Borrower’s equity incentive plan, which, in aggregate, donot exceed at any time five hundred thousand Dollars (US$500,000);

###  

### (i)                                     endorsementof cheques or bank drafts for deposit or collection in the ordinary course oftrading;

###  

### (j)                                     performance,surety and appeal bonds;

###  

### (k)                                  investmentsconsisting of non-cash consideration received by the Borrower or any of itsSubsidiaries from the sale of assets or Capital Stock of a Subsidiary aspermitted by this Agreement; and

###  

### (l)                                     investmentsin Globaltouch (West Africa) Limited *provided that*:

###  

#### (i)                                     theamount of such investment does not exceed five million Dollars (US$5,000,000)including any such investment made prior to the date of this Agreement;

####  

#### (ii)                                  theinvestment complies with paragraphs (b), (d) and (e) of thedefinition of Permitted Joint Venture Investments; and

####  

#### (iii)                               theBorrower shall deliver such information relating to the investment as theCOFACE Agent may reasonably request.

## ** **

## **22.4**                          Limitationson Mergers and Liquidations

## ** **

Not merge,consolidate or enter into any similar combination with any other person orliquidate, wind-up or dissolve itself (or suffer any liquidation ordissolution) except:

 

### (a)                                  anyWholly-Owned Subsidiary of the Borrower may be merged or consolidated with orinto the Borrower (*provided that*the Borrower shall be the continuing or surviving person) or with or into anySubsidiary Guarantor (*provided that*the Subsidiary Guarantor shall be the continuing or surviving person);

###  

### (b)                                 anyWholly-Owned Subsidiary may sell, lease, transfer or otherwise dispose of anyor all of its assets (upon voluntary liquidation or otherwise) to the Borroweror any other Wholly-Owned Subsidiary; (*provided that*if the transferor in such a transaction is a Subsidiary Guarantor, then thetransferee must either be the Borrower or a Subsidiary Guarantor);

###  

### (c)                                  anyWholly-Owned Subsidiary of the Borrower may merge with or into the person suchWholly-Owned Subsidiary was formed to acquire in connection with a PermittedAcquisition; and

 

123

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### (d)                                 anySubsidiary of the Borrower may wind-up into the Borrower or any SubsidiaryGuarantor.

###  

## **22.5**                          Limitationson Asset Dispositions

## ** **

Not make anyAsset Disposition (including, without limitation, the sale of any receivablesand leasehold interests and any sale-leaseback or similar transaction) except:

 

### (a)                                  thesale of inventory in the ordinary course of trading;

###  

### (b)                                 thesale of obsolete, damaged, worn-out or surplus assets no longer needed in thebusiness of the Borrower or any of its Subsidiaries;

###  

### (c)                                  anylease or sub-licence of spectrum subject to a Communications Licence *provided that* such lease or sub-licence is on *bona fide* arms length terms at the time such agreement isentered into and does not have, and could not reasonably expected to have, aMaterial Adverse Effect;

###  

### (d)                                 thetransfer of assets to the Borrower or any Subsidiary Guarantor pursuant toClause 22.4 (*Limitations on Mergers and Liquidations*);and

###  

### (e)                                  thesale or discount without recourse of accounts receivable arising in theordinary course of trading in connection with the compromise or collectionthereof.

###  

## **22.6**                          Limitationson Dividends and Distributions

## ** **

The Borrowershall not pay or make any Shareholder Distribution:

 

### (a)                                  priorto the end of the Availability Period; and

###  

### (b)                                 thereafter,unless on the date for the proposed Shareholder Distribution:

###  

#### (i)                                     theDebt Service Coverage Ratio calculated by reference to:

####  

##### (A)                              eachDebt Service Period preceding the date of calculation; and

#####  

##### (B)                                theaudited financial statements delivered in accordance with this Agreement,

#####  

for the twelve (12) Months precedingthe date of the proposed Shareholder Distribution is equal to or more than1.50:1 (one point five to one) and *provided that*,any Shareholder Distribution is made within thirty (30) days of the dateon which such financial statements used in the calculation of the Debt ServiceCoverage Ratio were delivered in accordance with this Agreement;

 

#### (ii)                                  noDefault shall have occurred and be continuing;

 

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#### (iii)                               theDebt Service Reserve Account is funded with the DSRA Required Balance (bothbefore and immediately after the relevant Shareholder Distribution);

####  

#### (iv)                              theBorrower has made payment in full to the Supplier of each of theforty eight (48) Satellites;

####  

#### (v)                                 theDebt Service Account is funded with the DSA Required Balance (both before andimmediately after the relevant Shareholder Distribution);

####  

#### (vi)                              theConvertible Notes Reserve Account is funded with the CNRA Required Balance(both before and immediately after the relevant Shareholder Distribution); and

####  

#### (vii)                           theBorrower has made each mandatory prepayment required pursuant toClause 7.3 (*Mandatory Prepayment — Initial Excess CashFlow*), Clause 7.4 (*Mandatory Prepayment —Ongoing Excess Cash Flow*) and Clause 7.6 (*MandatoryPrepayments — Asset Dispositions*).

####  

## **22.7**                          Limitationson Exchange and Issuance of Capital Stock

## ** **

Except asprovided for in the Borrower’s 2006 Equity Incentive Plan and the “*Designated Executive Incentive Award Agreement*”, not issue,sell or otherwise dispose of any class or series of Capital Stock that, by itsterms or by the terms of any security into which it is convertible orexchangeable, is, or upon the happening of an event or passage of time wouldbe:

 

### (a)                                  convertibleor exchangeable into Financial Indebtedness; or

###  

### (b)                                 requiredto be redeemed or repurchased prior to the date that is six (6) Monthsafter the Final Maturity Date, including at the option of the holder, in wholeor in part, or has, or upon the happening of an event or passage of time wouldhave, a redemption or similar payment due.

## ** **

## **22.8**                          Transactionswith Affiliates

## ** **

Not directly orindirectly:

 

### (a)                                  makeany loan or advance to, or purchase or assume any note or other obligation toor from, any of its officers, directors, shareholders or other Affiliates, orto or from any member of the immediate family of any of its officers, directors,shareholders or other Affiliates, or subcontract any operations to any of itsAffiliates; or

###  

### (b)                                 enterinto, or be a party to, any other transaction not described in clause (a) abovewith any of its Affiliates other than:

###  

#### (i)                                     transactionspermitted by Clause 22.1 (*Limitations on FinancialIndebtedness*), 22.3 (*Limitations on Loans,Investments and Acquisitions*), 22.4 (*Limitationson Mergers and Liquidations*) and 22.7 (*Limitationson Exchange and Issuance of Capital Stock*);

 

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#### (ii)                                  transactionsexisting on the date of this Agreement and described on Schedule 20 (*Transactions With Affiliates*);

####  

#### (iii)                               normalcompensation and reimbursement of reasonable expenses of officers and directorsincluding adoption of a restricted stock bonus or purchase plan;

####  

#### (iv)                              othertransactions in the ordinary course of trading on terms as favourable as wouldbe obtained by it on a comparable arms-length transaction with an independent,unrelated third party as determined in good faith by the board of directors ofthe Borrower;

####  

#### (v)                                 theBorrower’s incentive compensation plan described in Schedule 22 (*Incentive Plan*); and

####  

#### (vi)                              transactionspursuant to the Finance Documents.

####  

## **22.9**                          CertainAccounting Changes; Organisational Documents

## ** **

### (a)                                  Notchange its Fiscal Year end, or make any change in its accounting treatment andreporting practices except as required by GAAP.

###  

### (b)                                 Notamend, modify or change:

###  

#### (i)                                     itsarticles of incorporation (or corporate charter or other similar organizationaldocuments); or

####  

#### (ii)                                  itsbylaws (or other similar documents),

####  

in any such case, in any manner adverse inany respect to the rights or interests of the Finance Parties.

## ** **

## **22.10**                    Amendments;Payments and Prepayments of Subordinated Indebtedness

## ** **

### (a)                                  Notamend or modify (or permit the modification or amendment of) any of the termsor provisions of any Subordinated Indebtedness without the consent of theCOFACE Agent and the Lenders.

###  

### (b)                                 Exceptin the case of the Convertible Notes, not cancel, forgive, make any payment orprepayment on, or redeem or acquire for value including, without limitation:

###  

#### (i)                                     byway of depositing with any trustee with respect thereto money or securitiesbefore due for the purpose of paving when due; and

####  

#### (ii)                                  atthe maturity thereof any Subordinated Indebtedness, except refinancings,refundings, renewals, extensions or exchange of any Subordinated Indebtednesspermitted by Clause 22.1(e) (*Limitations on FinancialIndebtedness*).

 

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## **22.11**                    RestrictiveAgreements

## ** **

Not enter into or permit to exist anyagreement which impairs or limits the ability of any Subsidiary of the Borrowerto pay dividends to the Borrower.

 

## **22.12**                    Natureof Business

## ** **

Not alter inany material respect the character or conduct of the business conducted by theBorrower and its Subsidiaries as of the date of this Agreement.  Without limiting the foregoing, the Borrowerwill not permit or cause any Licence Subsidiary to engage in any line ofbusiness or engage in any other activity (including without limitationincurring liabilities) other than the ownership of one or more CommunicationsLicences; *provided that*, subject to anyrestrictions under Applicable Law with respect to Communications Licences, theBorrower shall cause each of the Licence Subsidiaries to execute and deliver aGuarantee Agreement and each other Finance Document to which such LicenceSubsidiary is a party.  In no eventshall:

 

### (a)                                  anyLicence Subsidiary own any assets other than one (1) or more CommunicationsLicences (and assets reasonably related thereto to the extent necessary tocomply with all Applicable Law); and

###  

### (b)                                 neitherthe Borrower nor any Subsidiary other than a Licence Subsidiary shall hold anyCommunications Licence issued by the FCC.

###  

## **22.13**                    Impairmentof Liens

## ** **

Not take or omit to take any action, whichmight or would have the result of materially impairing the security interestscreated in favour of the COFACE Agent with respect to the Collateral or grantto any person (other than the COFACE Agent for the benefit of itself and theLenders pursuant to the Security Documents) any interest whatsoever in theCollateral, except for Financial Indebtedness permitted under Clause 22.1(*Limitations on Financial Indebtedness*),Permitted Liens and Asset Dispositions permitted under Clause 22.5 (*Limitations on Asset Dispositions*).

## ** **

## **22.14**                    ExcessCash Flow / Purchase of Satellites

## ** **

### (a)                                  TheBorrower may not agree to the order, purchase, manufacture or delivery of anyor all Phase 3 Satellites (including acting or failing to act under theSatellite Construction Contract) unless it has provided a business plan to theCOFACE Agent with respect to those Phase 3 Satellites to be so ordered,purchased, manufactured or delivered (the “**RelevantSatellites**”):

###  

#### (i)                                     preparedin good faith by the Borrower and based upon reasonable assumptions;

####  

#### (ii)                                  demonstratingcompliance with each of the financial covenants contained in Clause 20 (*Financial Covenants*) on the date of such business plan andon a thirty six (36) Month projected basis;

####  

#### (iii)                               demonstratingthat the Borrower has funds immediately available to it in an amount not lessthan fifty *per cent.*(50%)of the Phase 3 Costs with respect to such Relevant Satellites (the “**Relevant Funds**”); and

 

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#### (iv)                              detailinga fully funded business plan for the Phase 3 Costs and the source offunding for the remaining fifty *per cent.*(50%) of the relevant Phase 3 Costs with respect to suchRelevant Satellites.

####  

#### For the avoidance of doubt, nothing in this Clause22.14 shall oblige the Borrower to purchase all of the Phase 3 Satellites.

####  

### (b)                                 TheRelevant Funds may be by way of Subordinated Debt, Capital Stock and/oravailable Excess Cash Flow and shall be deposited into the Capital ExpenditureAccount and applied solely for the purposes of paying the Phase 3 Costswith respect to such Relevant Satellites.

###  

## **22.15**                    NoHedging

## ** **

### (a)                                  Otherthan in accordance with Clause 21.11 (*Hedging Agreements*)or by way of the Interest Rate Cap Agreements, the Borrower shall not, withoutthe consent of the COFACE Agent, enter into any Hedging Agreement.

###  

### (b)                                 HedgingAgreements shall not be entered into with any parties other than the OriginalLenders.

###  

## **22.16**                    CommercialContracts

## ** **

### (a)                                  Notamend or grant any waiver:

###  

#### (i)                                     inrespect of any provision of any Commercial Contract relating to the firsttwenty four (24) Satellites, if such amendment or waiver wouldor could reasonably be expected to adversely affect the Lenders; and

####  

#### (ii)                                  inrespect of any other provision of any Commercial Contract not referred to inparagraph (a)(i) above, if such amendment or waiver would or couldreasonably be expected to have a Material Adverse Effect.

 

(b)                                 Not exercise the option to order from theSupplier up to eighteen (18) additional recurring Spacecraft (as such term isdefined in the Satellite Construction Contract) pursuant to Article 29(B) (*Options*) of the Satellite ConstructionContract without the prior written consent of the COFACE Agent.

 

# **23.**                               EVENTS OF DEFAULT

# ** **

Each of the events or circumstances set outin Clause 23 (*Events of Default*)is an Event of Default.

 

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## **23.1**                           Non-Payment

## ** **

An Obligordoes not pay on the due date any amount payable pursuant to a Finance Documentat the place and in the currency in which it is expressed to be payable unless:

 

### (a)                                  itsfailure to pay is caused by:

###  

#### (i)                                     administrativeor technical error; or

####  

#### (ii)                                  aDisruption Event; and

####  

### (b)                                 paymentis made within:

###  

#### (i)                                     inthe case of paragraph (a)(i) above:

####  

##### (A)                              inthe case of payments of principal and interest, within two (2) BusinessDays of its due date; or

#####  

##### (B)                                inthe case of any other payment, within four (4) Business Days of its duedate; and

#####  

#### (ii)                                  inthe case of paragraph (a)(ii) above:

####  

##### (A)                              inthe case of payments of principal and interest, within three (3) BusinessDays of the cessation (or reasonable avoidance) of such Disruption Event; or

#####  

##### (B)                                inthe case of any other payment, within five (5) Business Days of thecessation (or reasonable avoidance) of such Disruption Event.

#####  

## **23.2**                           FinancialCovenants

## ** **

### (a)                                  Anyrequirement of Clause 20 (*Financial Covenants*)is not satisfied.

###  

### (b)                                 NoEvent of Default under paragraph (a) above will occur if the failureto comply is capable of remedy and is remedied within thirty (30) days ofthe COFACE Agent giving notice to the Borrower or the Borrower becoming awareof the failure to comply.

###  

### (c)                                  NoEvent of Default under paragraph (a) above will occur if no later than thedate that is thirty (30) days after the Relevant Period, the Borrower hasreceived an Equity Cure Contribution (a “**RelevantContribution**”) and the Borrower satisfies the relevant covenantrecalculated to take into account all or part of such Relevant Contribution, *provided that*, the Borrower may not cure abreach of a relevant covenant as contemplated under this paragraph (c) formore than two (2) successive Relevant Periods of calculation or for morethan five (5) Relevant Periods in aggregate prior to the Final MaturityDate.

 

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## **23.3**                           OtherObligations

## ** **

### (a)                                  AnObligor does not comply with any provision of the Finance Documents (other thanthose referred to in Clause 7.1 (*Payments tothe Convertible Note Reserve Account*) of the Accounts Agreement,Clause 23.1 (*Non-Payment*) and Clause 23.2(*Financial Covenants*)).

###  

### (b)                                 NoEvent of Default under paragraph (a) above will occur if the failureto comply is capable of remedy and is remedied within ten (10) BusinessDays of the COFACE Agent giving notice to the Borrower or the Borrower becomingaware of the failure to comply.

###  

## **23.4**                           Misrepresentation

## ** **

Any representation or statement made by anObligor in the Finance Documents or any other document delivered by or onbehalf of an Obligor under or in connection with any Finance Document is orproves to have been incorrect or misleading when made or deemed to be made and,if capable of remedy, is not remedied within twenty (20) Business Days ofthe COFACE Agent giving notice to the Borrower or an Obligor becoming aware ofsuch misrepresentation.

 

## **23.5**                           CrossDefault

## ** **

### (a)                                  AnyFinancial Indebtedness of any Material Subsidiary is not paid when due nor withinany originally applicable grace period.

###  

### (b)                                 AnyFinancial Indebtedness of any Material Subsidiary is declared to be orotherwise becomes due and payable prior to its specified maturity as a resultof an event of default (however described).

###  

### (c)                                  Anycommitment for any Financial Indebtedness of any Material Subsidiary iscancelled or suspended by a creditor of any Material Subsidiary as a result ofan event of default (however described).

###  

### (d)                                 Anycreditor of any Material Subsidiary becomes entitled to declare any FinancialIndebtedness of any Material Subsidiary due and payable prior to its specifiedmaturity as a result of an event of default (however described).

###  

### (e)                                  NoEvent of Default will occur under this Clause 23.5 if the aggregate amountof Financial Indebtedness or commitment for Financial Indebtedness fallingwithin paragraphs (a) to (d) above is less than five millionDollars (US$5,000,000) (or its equivalent in any other currency or currencies).

## ** **

## **23.6**                           Insolvency

## ** **

Any MaterialSubsidiary shall:

 

### (a)                                  commencea voluntary case (or analogous motion) under the federal bankruptcy laws orunder other laws, domestic or foreign, relating to bankruptcy, insolvency,reorganisation, winding-up or adjustment of debts or analogous proceedings;

 

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### (b)                                 filea petition (or analogous motion) seeking to take advantage of any other laws,domestic or foreign, relating to bankruptcy, insolvency, reorganisation,winding-up, composition for adjustment of debts or analogous proceedings;

###  

### (c)                                  consentto or fail to contest in a timely and appropriate manner any petition filedagainst it in an involuntary case under such bankruptcy laws or other laws;

###  

### (d)                                 applyfor or consent to, or fail to consent in a timely and appropriate manner, theappointment of, or the taking of possession by, a receiver, custodian, trusteeor liquidator of itself or of a substantial part of its property, domestic orforeign;

###  

### (e)                                  admitin writing its inability to pay its debts as they become due;

###  

### (f)                                    makea general assignment for the benefit of creditors;

###  

### (g)                                 takeany corporate action for the purpose of authorising any of the foregoing; or

###  

### (h)                                 suspendor threaten to suspend making payment on any of its debts or by reason ofactual or anticipated financial difficulties commences negotiations withone (1) or more of its creditors with a view to rescheduling any ofits indebtedness (other than the Finance Parties in connection with thisAgreement).

###  

## **23.7**                           InsolvencyProceedings

## ** **

A case orother proceeding shall be commenced against a Material Subsidiary in any courtof competent jurisdiction and such case or proceeding shall continue withoutdismissal or stay for a period of sixty (60) consecutive days, seeking:

 

### (a)                                  reliefunder the federal bankruptcy laws or under other laws, domestic or foreign,relating to bankruptcy, insolvency, reorganisation, winding-up or adjustment ofdebts or analogous proceedings; or

###  

### (b)                                 theappointment of a trustee, receiver, custodian, liquidator or the like for aMaterial Subsidiary or for all or any substantial part of their respectiveassets, domestic or foreign, or an order granting the relief requested in suchcase or proceeding (including, but not limited to, an order for relief undersuch federal bankruptcy laws or under other laws, domestic or foreign, relatingto bankruptcy, insolvency, reorganisation, winding-up or adjustment of debts oranalogous proceedings) shall be entered.

 

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## **23.8**                           Creditors’Process

## ** **

Any attachment,sequestration, distress or execution or any analogous process in anyjurisdiction affects any asset or assets of a Material Subsidiary having anaggregate value of one million Dollars (US$1,000,000) and is not dischargedwithin twenty (20) Business Days or such longer period of time if suchMaterial Subsidiary is contesting such process in good faith *provided that*, such process:

 

### (a)                                  isin any event discharged within one hundred and eighty (180) days; and

###  

### (b)                                 doesnot have or could not reasonably be likely to have a Material Adverse Effect.

###  

## **23.9**                           Unlawfulnessand Invalidity

## ** **

### (a)                                  Itis or becomes unlawful for an Obligor, or any other member of the Group partyto an Acceptable Intercreditor Agreement, to perform any of its obligationsunder the Transaction Documents or any Acceptable Intercreditor Agreement towhich it is a party or any Lien created or expressed to be created or evidencedby a Security Document ceases to be effective or any subordination under anyAcceptable Intercreditor Agreement is or becomes unlawful.

###  

### (b)                                 Anyobligation or obligations of any Obligor under any Finance Document, or anyother member of the Group under an Acceptable Intercreditor Agreement, are notor cease to be legal, valid, binding or enforceable and the cessation individuallyor cumulatively materially and adversely affects the interests of the Lendersunder the Finance Documents or Acceptable Intercreditor Agreement.

###  

### (c)                                  AnyTransaction Document is terminated or ceases to be in full force and effect orany Lien or subordination created under a Security Document or an AcceptableIntercreditor Agreement ceases to be legal, valid, binding, enforceable oreffective or is alleged by a party to it (other than a Finance Party) to beineffective.

###  

### (d)                                 NoEvent of Default under paragraphs (b) and (c) above will occurin respect of a Finance Document (other than this Agreement and an AcceptableIntercreditor Agreement) if the failure to comply is capable of remedy and isremedied within three (3) Business Days of the COFACE Agent giving noticeto the Borrower or the Borrower becoming aware of the failure to comply.

###  

## **23.10**                     MaterialAdverse Change

## ** **

Any event or circumstance occurs which theMajority Lenders reasonably believe has or is reasonably likely to have aMaterial Adverse Effect *provided that*,no Event of Default shall occur under this Clause 23.10 if such event orcircumstance is capable of being remedied and is remedied to the satisfactionof the COFACE Agent within thirty (30) days of the COFACE Agent givingnotice to the Borrower or the Borrower the becoming aware of the occurrence ofsuch event or circumstance.

 

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## **23.11**                     Repudiationand Rescission of Agreements

## ** **

An Obligor (or any other relevant party)rescinds or purports to rescind or repudiates or purports to repudiate aTransaction Document or evidences an intention to rescind or repudiate aTransaction Document, which has or is likely to have a Material Adverse Effect.

 

## **23.12**                     Expropriation

## ** **

The authority or ability of a MaterialSubsidiary to conduct its business is limited or wholly or substantiallycurtailed by any seizure, expropriation, nationalisation, intervention,restriction or other action by or on behalf of any governmental, regulatory orother authority or other person in relation to any Material Subsidiary or anyof its assets.

 

## **23.13**                     Litigation

## ** **

Any litigation, arbitration,administrative, governmental, regulatory or other investigations, proceedingsor disputes are commenced or threatened against any Material Subsidiary or itsassets which has or is reasonably likely to have a Material Adverse Effectunless such action is frivolous or vexatious.

 

## **23.14**                     AuditQualification

## ** **

The auditors of the Group qualify theaudited annual consolidated financial statements of the Group to an extent thathas or could reasonably by expected to have a Material Adverse Effect.

 

## **23.15**                     ERISATermination Event

## ** **

The occurrenceof any of the following events:

 

### (a)                                  anyObligor or any ERISA Affiliate fails to make full payment when due of allamounts which, under the provisions of any Pension Plan or Multiemployer Planor Section 412 of the Code, or Section 302 of ERISA, such Obligor orERISA Affiliate is required to pay as contributions thereto;

###  

### (b)                                 an “*unpaid minimum required contribution*” or an “*accumulated funding deficiency*” (as defined or otherwise setforth in Section 4971 of the Code or Part 3 of Subtitle B ofTitle I of ERISA) in excess of two million five hundred thousand Dollars(US$2,500,000) occurs or exists, whether or not waived, with respect to anyPension Plan;

###  

### (c)                                  theBorrower or any ERISA Affiliate as an employer under one (1) or moreMultiemployer Plans makes a complete or partial withdrawal from any suchMultiemployer Plan and the plan sponsor of such Multiemployer Plan notifiessuch withdrawing employer that such employer has incurred a withdrawalliability requiring payments in an amount exceeding two million five hundredthousand Dollars (US$2,500,000); or

###  

### (d)                                 (i)            any ERISA Termination Event;

 

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(ii)                                  any Unfunded Pension Liability (taking intoaccount only Pension Plans with positive Unfunded Pension Liabilities); or

 

(iii)                               any potential withdrawal liability under Section 4201of ERISA, if each Obligor and ERISA Affiliate were to withdraw completely fromany and all Multiemployer Plans,

 

and the events described inparagraphs (d)(i), (ii) and (iii), either individually or in theaggregate, have resulted, or would be reasonably expected to result, in amaterial liability of any Obligor or any ERISA Affiliate.

 

## **23.16**                     Environmental

## ** **

Any one (1) or more EnvironmentalClaims shall have been asserted against the Borrower or any of itsSubsidiaries; the Borrower or any of its Subsidiaries would be reasonablylikely to incur liability as a result thereof; and such liability would bereasonably likely, individually or in the aggregate, to have a Material AdverseEffect.

 

## **23.17**                     Failureto Bring Satellites in Service

## ** **

The Borrowerhas failed to achieve:

 

### (a)                                  IndividualIn-Orbit Acceptance with respect to six (6) Satellites delivered under theSatellite Construction Contract by 30 September 2010; or

###  

### (b)                                 FinalIn-Orbit Acceptance by 1 January 2012.

###  

## **23.18**                     DebtService Reserve Account

## ** **

### (a)                                  Atany time after the date of this Agreement the Debt Service Reserve Account isnot fully funded with the DSRA Required Balance within five (5) BusinessDays of any drawdown of such Project Account.

###  

### (b)                                 Atany time the Debt Service Reserve Account is not fully funded with the DSRARequired Cash Balance within five (5) Business Days of any drawdown ofsuch Project Account.

###  

## **23.19**                     ContingentEquity Required Balance

## ** **

The sum of the Thermo Contingent EquityAccount and the Borrower Contingent Equity Account is at any time prior to theContingent Equity Release Date *less*than theContingent Equity Required Balance.

 

## **23.20**                     COFACEInsurance Policy

## ** **

The credit insurance cover under the COFACEInsurance Policy extended by COFACE in favour of the Lenders in respect of eachFacility ceases to be in full force and effect for a reason attributable to theBorrower.

 

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# **24.**                               REMEDIES UPON AN EVENT OF DEFAULT

# ** **

On and at anytime after the occurrence of an Event of Default which is continuing, theCOFACE Agent may, and it shall if so directed by the Majority Lenders, bynotice to the Borrower:

 

### (a)                                  cancelthe Total Commitments whereupon they shall immediately be cancelled and nofurther Utilisations shall be requested or made under a Facility; and/or

###  

### (b)                                 declarethat all or part of the Loans, together with accrued interest, and all otheramounts accrued or outstanding under the Finance Documents be immediately dueand payable, whereupon the same shall become immediately due and payable;and/or

###  

### (c)                                  declarethat all or part of the Loans are payable on demand, whereupon they shallbecome immediately due and payable; and/or

###  

### (d)                                 exerciseor direct the Security Agent to exercise any or all of its rights, remedies,powers or discretions under the Finance Documents; and/or

###  

### (e)                                  exerciseall other contractual and legal rights of the Finance Parties in respect of anyLiens; and/or

###  

### (f)                                    takeany other action and pursue any other remedies available under Applicable Lawor under the Finance Documents.

###  

# **25.**                               SECURITY

# ** **

Unless expressly provided to the contrary,the Security Agent holds any security created by a Security Document for theFinance Parties on the terms set out in Schedule 6 (*The SecurityAgent*).

 

# **26.**                               CHANGES TO THE LENDERS

# ** **

## **26.1**                           Assignmentsand Transfers by the Lenders

## ** **

Subject tothis Clause 26 (*Changes to the Lenders*),a Lender (the “**Existing Lender**”) may:

 

### (a)                                  assignany of its rights; or

###  

### (b)                                 transferby novation any of its rights and obligations,

###  

to another bank or financial institution orto a trust, fund or other entity which is regularly engaged in or establishedfor the purpose of making, purchasing or investing in loans, securities orother financial assets (the “**New Lender**”).

 

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## **26.2**                           Conditionsof Assignment or Transfer

## ** **

### (a)                                  Theconsent of the Borrower is required for an assignment of transfer by anExisting Lender, *provided that* no consent shall berequired to be obtained from the Borrower if such transfer or assignment is:

###  

#### (i)                                     to aQualifying Lender or to an existing Lender (or any of its Affiliates);

####  

#### (ii)                                  madeat any time when a Default has occurred and is continuing; and/or

####  

#### (iii)                               requiredby any Applicable Law.

####  

### (b)                                 Theconsent of the Borrower to an assignment or transfer must not be unreasonablywithheld or delayed.  The Borrower willbe deemed to have given its consent five (5) Business Days after theExisting Lender has requested it unless the consent is expressly refused by theBorrower within that time.

###  

### (c)                                  Theconsent of the Borrower to an assignment must not be withheld solely becausethe assignment or transfer may result in an increase to the Mandatory Cost.

###  

### (d)                                 Anassignment will only be effective on:

###  

#### (i)                                     receiptby the COFACE Agent of written confirmation from the New Lender (in form and substancesatisfactory to the COFACE Agent) that the New Lender will assume the sameobligations to the other Finance Parties as it would have been under if it wasan Original Lender;

####  

#### (ii)                                  performanceby the COFACE Agent of all necessary “*know your customer*”or other similar checks under all applicable laws and regulations in relationto such assignment to a New Lender, the completion of which the COFACE Agentshall promptly notify to the Existing Lender and the New Lender; and

####  

#### (iii)                               whenthe COFACE Agent updates the Register (as defined in Clause 26.8 (*Register*) below) in accordance with the provisions ofClause 26.8 (*Register*) below.

####  

### (e)                                  Atransfer will only be effective if the procedure set out in Clause 26.5 (*Procedure for Transfer*) is complied with.

###  

### (f)                                    If:

###  

#### (i)                                     aLender assigns or transfers any of its rights or obligations under the FinanceDocuments or changes its Facility Office; and

####  

#### (ii)                                  as a result of circumstances existing atthe date the assignment, transfer or change occurs, an Obligor would be obligedto make a payment to the New Lender or Lender acting through its new FacilityOffice under 

 

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#### Clause 13(*Tax gross-up and indemnities*) orClause 14 (*Increased Costs*), 

####  

#### thenthe New Lender or Lender acting through its new Facility Office is onlyentitled to receive payment under those Clauses to the same extent as theExisting Lender or Lender acting through its previous Facility Office wouldhave been if the assignment, transfer or change had not occurred.

 

## **26.3**                           Assignmentor Transfer Fee

## ** **

The New Lender shall, on the date uponwhich an assignment or transfer takes effect, pay to the COFACE Agent (for itsown account) a fee of two thousand Dollars (US$2,000).

 

## **26.4**                           Limitationof Responsibility of Existing Lenders

## ** **

### (a)                                  Unlessexpressly agreed to the contrary, an Existing Lender makes no representation orwarranty and assumes no responsibility to a New Lender for:

###  

#### (i)                                     thelegality, validity, effectiveness, adequacy or enforceability of the Finance Documentsor any other documents;

####  

#### (ii)                                  thefinancial condition of the Borrower or the status of the Project;

####  

#### (iii)                               theperformance and observance by the Borrower of its obligations under the FinanceDocuments or any other documents; or

####  

#### (iv)                              theaccuracy of any statements (whether written or oral) made in or in connectionwith any Finance Document or any other document,

####  

and any representations or warrantiesimplied by law are excluded.

 

### (b)                                 EachNew Lender confirms to the Existing Lender and the other Finance Parties thatit:

###  

#### (i)                                     hasmade (and shall continue to make) its own independent investigation andassessment of the financial condition and affairs of each Obligor and itsrelated entities in connection with its participation in this Agreement and hasnot relied exclusively on any information provided to it by the Existing Lenderin connection with any Finance Document; and

####  

#### (ii)                                  willcontinue to make its own independent appraisal of the creditworthiness of eachObligor and its related entities whilst any amount is or may be outstandingunder the Finance Documents or any Commitment is in force.

####  

### (c)                                  Nothingin any Finance Document obliges an Existing Lender to:

###  

#### (i)                                     accepta re-transfer from a New Lender of any of the rights and obligations assignedor transferred under this Clause 26; or

 

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#### (ii)                                  supportany losses directly or indirectly incurred by the New Lender by reason of thenon-performance by any Obligor of its obligations under the Finance Documentsor otherwise.

####  

## **26.5**                           Procedurefor Transfer

## ** **

### (a)                                  Subjectto the conditions set out in Clause 26.2 (*Conditionsof Assignment or Transfer*) a transfer is effected in accordance withparagraph (c) below when the COFACE Agent executes an otherwise dulycompleted Transfer Certificate delivered to it by the Existing Lender and theNew Lender and updates the Register (as defined in Clause 26.8 (*Register*) below) in accordance with the provisions ofClause 26.8 (*Register*) below.  The COFACE Agent shall, subject toparagraph (b) below, as soon as reasonably practicable after receiptby it of a duly completed Transfer Certificate appearing on its face to complywith the terms of this Agreement and delivered in accordance with the terms ofthis Agreement, execute that Transfer Certificate.

###  

### (b)                                 TheCOFACE Agent shall only be obliged to execute a Transfer Certificate deliveredto it by the Existing Lender and the New Lender once it is satisfied it hascomplied with all necessary “*know your customer*”or other similar checks under all applicable laws and regulations in relationto the transfer to such New Lender.

###  

### (c)                                  Onthe Transfer Date:

###  

#### (i)                                     tothe extent that in the Transfer Certificate the Existing Lender seeks totransfer by novation its rights and obligations under the Finance Documentseach of the Obligors and the Existing Lender shall be released from furtherobligations towards one another under the Finance Documents and theirrespective rights against one another under the Finance Documents shall becancelled (being the “**Discharged Rights andObligations**”);

####  

#### (ii)                                  theBorrower and the New Lender shall assume obligations towards one another and/oracquire rights against one another which differ from the Discharged Rights andObligations only insofar as that Obligor and the New Lender have assumed and/oracquired the same in place of that Obligor and the Existing Lender;

####  

#### (iii)                               theCOFACE Agent, the Security Agent, each Mandated Lead Arranger, the New Lenderand other Lenders shall acquire the same rights and assume the same obligationsbetween themselves as they would have acquired and assumed had the New Lenderbeen an Original Lender with the rights and/or obligations acquired or assumedby it as a result of the transfer and to that extent the COFACE Agent, each MandatedLead Arranger, the Security Agent and the Existing Lender shall each bereleased from further obligations to each other under the Finance Documents;and

####  

#### (iv)                              theNew Lender shall become a Party as a “**Lender**”.

####  

#### 138

#### 

###  

### (d)                                 Forthe avoidance of doubt, for the purposes of *article 1278*ofthe French Civil Code and only in relation to the Pledge of Bank Accounts, itis expressly agreed that the Pledge of Bank Accounts shall be preserved for thebenefit of the New Lender and all other Finance Parties.

###  

## **26.6**                          Copyof Transfer Certificate to Borrower

## ** **

The COFACE Agent shall, as soon asreasonably practicable after it has executed a Transfer Certificate, send tothe Borrower a copy of that Transfer Certificate.

 

## **26.7**                          Disclosureof information

## ** **

Any Lender maydisclose to any of its Affiliates and any other person:

 

### (a)                                  to(or through) whom that Lender assigns or transfers (or may potentially assignor transfer) all or any of its rights and obligations under this Agreement;

###  

### (b)                                 with(or through) whom that Lender enters into (or may potentially enter into) anysub-participation in relation to, or any other transaction under which paymentsare to be made by reference to, this Agreement or any Obligor; or

###  

### (c)                                  towhom, and to the extent that, information is required to be disclosed by anyapplicable law or regulation,

###  

any information about the Borrower, Thermo,the Group and the Finance Documents as that Lender shall consider appropriateif, in relation to paragraphs (a) and(b) above, the person towhom the information is to be given has entered into a ConfidentialityUndertaking.

 

## **26.8**                          Register

## ** **

### (a)                                  TheBorrower hereby designates the COFACE Agent, and the COFACE Agent agrees, toserve as the Borrower’s agent, solely for purposes of this Clause 26.8, tomaintain a register (the “**Register**”)on which it will record the Commitments from time to time of each of theLenders and each repayment in respect of the principal amount of the Loans ofeach Lender.

###  

### (b)                                 Failureto make any such recordation, or any error in such recordation shall not affectthe Borrower’s obligations in respect of such Loans.

###  

### (c)                                  Withrespect to any Lender, the transfer or assignment of the Commitments of suchLender and the rights to the principal of, and interest on, any Loan madepursuant to such Commitments shall not be effective until:

###  

#### (i)                                     theTransfer Certificate has been executed by the COFACE Agent; and

####  

#### (ii)                                  suchtransfer is recorded on the Register maintained by the COFACE Agent withrespect to ownership of such Commitments and Loans.  Prior to such recordation all amounts owingto the transferor with respect to such Commitments and Loans shall remain owingto the transferor.

 

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### (d)                                 Theregistration of an assignment or transfer of all or part of any Commitments andLoans shall be recorded by the COFACE Agent on the Register only upon theacceptance by the COFACE Agent of a properly executed and delivered TransferCertificate pursuant to this Clause 26.8.

###  

### (e)                                  TheBorrower agrees to indemnify the COFACE Agent from and against any and alllosses, claims, damages and liabilities of whatsoever nature which may beimposed upon, asserted against or incurred by the COFACE Agent in performingits duties under this Clause 26.8 except to the extent resulting from thegross negligence or wilful misconduct of the COFACE Agent (as determined by acourt of competent jurisdiction in a final and non-appealable decision).

###  

# **27.**                               CHANGES TO THE BORROWER

# ** **

The Borrower may not assign any of itsrights or transfer any of its rights or obligations under the FinanceDocuments.

 

# **28.**                               ROLE OF THE COFACE AGENT, THE SECURITY AGENT AND THEMANDATED LEAD ARRANGERS

# ** **

## **28.1**                          Appointmentof the COFACE Agent and the Security Agent

## ** **

### (a)                                  Eachother Finance Party (other than the Security Agent) appoints the COFACE Agentto act as its agent under and in connection with the Finance Documents.

###  

### (b)                                 Eachother Finance Party (other than the COFACE Agent) appoints the Security Agentto act as its security agent and security trustee under and in connection withthe Finance Documents.

###  

### (c)                                  Eachother Finance Party authorises the COFACE Agent and the Security Agent toexercise the rights, powers, authorities and discretions specifically given tothe COFACE Agent and the Security Agent under or in connection with the FinanceDocuments together with any other incidental rights, powers, authorities anddiscretions.

###  

### (d)                                 Eachother Finance Party (other than the COFACE Agent) appoints the Security Agentto enforce any Security expressed to be created under the Security Documents asagent (or as otherwise provided) on its behalf, subject always to the terms ofthe Finance Documents.

###  

## **28.2**                          Appointmentof the Security Agent (France)

## ** **

### (a)                                  EachFinance Party (other than the Security Agent) as “*mandants*” under French law irrevocably:

###  

#### (i)                                     appointsthe Security Agent to act as its agent (“*mandataire*”under French law) under and in connection with the Borrower Pledge of BankAccounts, the Thermo Pledge of Bank Account and each Delegation Agreement (the “**French Security Documents**”); and

####  

#### 140

#### 

####  

#### (ii)                                  authorisesthe Security Agent to execute for and on its behalf the French SecurityDocuments and to perform the duties and to exercise the rights, powers anddiscretions that are specifically delegated to it under or in connection withthe French Security Documents, together with any other rights, powers anddiscretions which are incidental thereto and to give a good discharge for anymoneys payable under the French Security Documents.

####  

### (b)                                 TheSecurity Agent will act solely for itself and as agent for the other FinanceParties in carrying out its functions as agent under the French SecurityDocuments.

###  

### (c)                                  Therelationship between the Finance Parties (other than the Security Agent) andthe Security Agent is that of principal (“*mandant*”under French law) and agent (“*mandataire*”under French law) only.  The SecurityAgent shall not have, nor be deemed to have, assumed any obligations to, or trustor fiduciary relationship with, any party to this Agreement other than thosefor which specific provision is made by the French Security Documents and, tothe extent permissible under French law, the other provisions of thisAgreement, which shall be deemed to be incorporated in this Clause 28.2,where reference is made to the French Security Documents.

###  

### (d)                                 NotwithstandingClause 39 (*Governing law*), thisClause 28.2 shall be governed by, and construed in accordance with, Frenchlaw.  Notwithstanding Clause 40.1 (*Jurisdiction*), any dispute arising out of thisClause 28.2 shall be submitted to the *Tribunal de Commerce deParis*.

###  

### (e)                                  EachFinance Party, the Security Agent and the Borrower irrevocably acknowledge thatthe existence and extent of the Security Agent’s authority resulting from thisClause 28.2 and the effects of the Security Agent’s exercise of thisauthority shall be governed by French law.

###  

## **28.3**                          Dutiesof the COFACE Agent and the Security Agent

## ** **

### (a)                                  Eachof the COFACE Agent and the Security Agent shall promptly forward to a Partythe original or a copy of any document which is delivered to the COFACE Agentor the Security Agent for that Party by any other Party.

###  

### (b)                                 Exceptwhere a Finance Document specifically provides otherwise, neither the COFACEAgent nor the Security Agent is obliged to review or check the adequacy,accuracy or completeness of any document it forwards to another Party.

###  

### (c)                                  Ifthe COFACE Agent or the Security Agent receives notice from a Party referringto this Agreement, describing a Default and stating that the circumstancedescribed is a Default, it shall promptly notify the Finance Parties.

###  

### (d)                                 Ifthe COFACE Agent is aware of the non-payment of any principal, interest,commitment fee or other fee payable to a Finance Party (other than the 

###  

### 141

### 

###  

###  

### COFACE Agent, the Security Agent or a Mandated LeadArranger) under this Agreement it shall promptly notify the other FinanceParties.

###  

### (e)                                  TheCOFACE Agent’s and the Security Agent’s duties under the Finance Documents aresolely mechanical and administrative in nature.

###  

## **28.4**                          Roleof the Mandated Lead Arrangers

## ** **

Except as specifically provided in theFinance Documents, no Mandated Lead Arranger has any obligations of any kind toany other Party under or in connection with any Finance Document.

 

## **28.5**                          NoFiduciary Duties

## ** **

### (a)                                  Nothingin this Agreement constitutes the COFACE Agent, the Security Agent (except asexpressly provided in the Finance Documents) or a Mandated Lead Arranger as atrustee or fiduciary of any other person.

###  

### (b)                                 Neitherthe COFACE Agent, the Security Agent (except as expressly provided in theFinance Documents) nor the Mandated Lead Arrangers shall be bound to account toany Lender for any sum or the profit element of any sum received by it for itsown account.

###  

## **28.6**                          Businesswith the Group

## ** **

The COFACE Agent, the Security Agent andthe Mandated Lead Arrangers may accept deposits from, lend money to andgenerally engage in any kind of banking or other business with any member ofthe Group.

 

## **28.7**                          Rightsand Discretions of the COFACE Agent and the Security Agent

## ** **

### (a)                                  Eachof the COFACE Agent and the Security Agent may rely on:

###  

#### (i)                                     anyrepresentation, notice or document believed by it to be genuine, correct andappropriately authorised; and

####  

#### (ii)                                  anystatement made by a director, authorised signatory or employee of any personregarding any matters which may reasonably be assumed to be within hisknowledge or within his power to verify.

####  

### (b)                                 Eachof the COFACE Agent and the Security Agent may assume (unless it has receivednotice to the contrary in its capacity as agent for the Lenders) that:

###  

#### (i)                                     noDefault has occurred (unless it has actual knowledge of a Default arising underClause 23.1 (*Non-Payment*));

####  

#### (ii)                                  anyright, power, authority or discretion vested in any Party or the MajorityLenders has not been exercised; and

####  

#### (iii)                               anynotice or request made by the Borrower (other than a Utilisation Request) ismade on behalf of and with the consent and knowledge of the Borrower.

###  

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### 

###  

### (c)                                  Eachof the COFACE Agent and the Security Agent may engage, pay for and rely on theadvice or services of any lawyers, accountants, surveyors or other experts.

###  

### (d)                                 Eachof the COFACE Agent and the Security Agent may act in relation to the FinanceDocuments through its personnel and agents.

###  

### (e)                                  Eachof the COFACE Agent and the Security Agent may disclose to any other Party anyinformation it reasonably believes it has received as agent under thisAgreement.

###  

### (f)                                    Notwithstandingany other provision of any Finance Document to the contrary, neither the COFACEAgent, the Security Agent nor a Mandated Lead Arranger is obliged to do or omitto do anything if it would or might in its reasonable opinion constitute abreach of any law or a breach of a fiduciary duty or duty of confidentiality.

###  

### (g)                                 Saveas expressly otherwise provided in any Finance Document, the Security Agent mayexercise its trusts, powers and authorities under the Finance Documents in itsabsolute and unconditional discretion.

###  

## **28.8**                          MajorityLenders’ Instructions

## ** **

### (a)                                  Unlessa contrary indication appears in a Finance Document, each of the COFACE Agentand the Security Agent shall:

###  

#### (i)                                     exerciseany right, power, authority or discretion vested in it in accordance with anyinstructions given to it by the Majority Lenders (or, if so instructed by theMajority Lenders, refrain from exercising any right, power, authority ordiscretion vested in it); and

####  

#### (ii)                                  notbe liable for any act (or omission) if it acts (or refrains from taking anyaction) in accordance with an instruction of the Majority Lenders.

####  

### (b)                                 Unlessa contrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Finance Parties.

###  

### (c)                                  Eachof the COFACE Agent and the Security Agent may refrain from acting inaccordance with the instructions of the Majority Lenders (or, if appropriate,the Lenders) until it has received such security as it may require for anycost, loss or liability (together with any associated VAT) which it may incurin complying with the instructions.

###  

### (d)                                 Inthe absence of instructions from the Majority Lenders, (or, if appropriate, theLenders) each of the COFACE Agent and the Security Agent may act (or refrainfrom taking action) as it considers to be in the best interest of the Lenders.

###  

### (e)                                  Neitherthe COFACE Agent nor the Security Agent is authorised to act on behalf of aLender (without first obtaining that Lender’s consent) in any legal or arbitrationproceedings relating to any Finance Document.

###  

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### 

###  

### (f)                                    TheSecurity Agent may assume (unless it has received notice to the contrary in itscapacity as Security Agent) that all instructions given to it by the COFACEAgent, if required to be approved by the Majority Lenders, have been soapproved.

###  

## **28.9**                          Responsibilityfor Documentation

## ** **

None of theCOFACE Agent, the Security Agent nor a Mandated Lead Arranger:

 

### (a)                                  isresponsible for the adequacy, accuracy and/or completeness of any information(whether oral or written) supplied by the COFACE Agent, the Security Agent, aMandated Lead Arranger, the Borrower or any other person given in or inconnection with any Finance Document; or

###  

### (b)                                 isresponsible for the legality, validity, effectiveness, adequacy orenforceability of any Finance Document or any other agreement, arrangement ordocument entered into, made or executed in anticipation of or in connectionwith any Finance Document.

###  

## **28.10**                    Exclusionof Liability

## ** **

### (a)                                  Withoutlimiting paragraph (b), neither the COFACE Agent nor the Security Agentwill be liable (including, without limitation, for negligence or any othercategory of liability whatsoever) for any action taken by it under or inconnection with any Transaction Document, unless directly caused by its grossnegligence or wilful misconduct.

###  

### (b)                                 NoParty (other than the COFACE Agent or the Security Agent) may take anyproceedings against any officer, employee or agent of the COFACE Agent or theSecurity Agent in respect of any claim it might have against the COFACE Agentor the Security Agent or in respect of any act or omission of any kind by thatofficer, employee or agent in relation to any Finance Document and any officer,employee or agent of the COFACE Agent or the Security Agent may rely on thisClause subject to Clause 1.5 (*Third Party Rights*)and the provisions of the Third Parties Act.

###  

### (c)                                  Neitherthe COFACE Agent nor the Security Agent will be liable for any delay (or anyrelated consequences) in crediting an account with an amount required under theFinance Documents to be paid by it if it has taken all necessary steps as soonas reasonably practicable to comply with the regulations or operatingprocedures of any recognised clearing or settlement system used by it for thatpurpose.

###  

### (d)                                 Nothingin this Agreement shall oblige the COFACE Agent, the Security Agent or aMandated Lead Arranger to carry out any “*know your customer*”or other checks in relation to any person on behalf of any Lender and eachLender confirms to the COFACE Agent, the Security Agent and each Mandated LeadArranger that it is solely responsible for any such checks it is required tocarry out and that it may not rely on any statement in relation to such checksmade by the COFACE Agent, the Security Agent and a Mandated Lead Arranger.

###  

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### 

###  

## **28.11**                    Lenders’Indemnity to the COFACE Agent and the Security Agent

## ** **

Each Lender shall (in proportion to itsshare of the Total Commitments or, if the Total Commitments are then zero, toits share of the Total Commitments immediately prior to their reduction tozero) indemnify each of the COFACE Agent and the Security Agent, within three (3) BusinessDays of demand, against any cost, loss or liability (including, withoutlimitation, for negligence or any other category of liability whatsoever)incurred by the COFACE Agent and the Security Agent (otherwise than by reasonof its gross negligence or wilful misconduct) notwithstanding its negligence,gross negligence or any other category of liability whatsoever but notincluding any claim based on the fraud of the COFACE Agent or the SecurityAgent in acting as COFACE Agent or the Security Agent under the FinanceDocuments (unless the COFACE Agent or the Security Agent has been reimbursed bythe Borrower pursuant to a Finance Document).

 

## **28.12**                    Resignationof the COFACE Agent and the Security Agent

## ** **

### (a)                                  Eachof the COFACE Agent and the Security Agent may resign and appoint one of itsAffiliates as successor by giving notice to the other Finance Parties and theBorrower.

###  

### (b)                                 Alternativelyeach of the COFACE Agent and the Security Agent may resign by giving notice tothe other Finance Parties and the Borrower, in which case the Majority Lenders (afterconsultation with the Borrower) may appoint a successor COFACE Agent orSecurity Agent (as the case may be).

###  

### (c)                                  Ifthe Majority Lenders have not appointed a successor COFACE Agent or SecurityAgent in accordance with Clause 28.12(b) within thirty (30) daysafter notice of resignation was given, the COFACE Agent or the Security Agent(after consultation with the Borrower) may appoint a successor COFACE Agent orSecurity Agent.

###  

### (d)                                 Theretiring COFACE Agent or Security Agent shall, at its own cost, make availableto its successor such documents and records and provide such assistance as itssuccessor may reasonably request for the purposes of performing its functionsas COFACE Agent or Security Agent under the Finance Documents.

###  

### (e)                                  TheCOFACE Agent’s resignation notice shall only take effect upon the appointmentof a successor.

###  

### (f)                                    TheSecurity Agent’s resignation notice shall only take effect upon:

###  

#### (i)                                     theappointment of a successor; and

####  

#### (ii)                                  thetransfer of all of any Lien expressed to be created under the SecurityDocuments to that successor.

####  

### (g)                                 Uponthe appointment of a successor, the retiring COFACE Agent or Security Agentshall be discharged from any further obligation in respect of the FinanceDocuments but shall remain entitled to the benefit of thisClause 28.12.  Its successor andeach of the other Parties shall have the same rights and 

###  

### 145

### 

###  

### obligations amongst themselves as they would havehad if such successor had been an original Party.

###  

### (h)                                 Afterconsultation with the Borrower, the Majority Lenders may, by notice to theCOFACE Agent or the Security Agent (as the case may be), require it to resignin accordance with Clause 28.12(a). In this event, the COFACE Agent or the Security Agent (as the case maybe) shall resign in accordance with Clause 28.12(a).

###  

## **28.13**                    Confidentiality

## ** **

### (a)                                  Inacting as agent for the Finance Parties, each of the COFACE Agent and theSecurity Agent shall be regarded as acting through its agency division which shallbe treated as a separate entity from any other of its divisions or departments.

###  

### (b)                                 Ifinformation is received by another division or department of the COFACE Agentor the Security Agent, it may be treated as confidential to that division ordepartment and neither the COFACE Agent nor the Security Agent shall be deemedto have notice of it.

###  

## **28.14**                    Relationshipwith the Lenders

## ** **

### (a)                                  TheCOFACE Agent may treat each Lender as a Lender, entitled to payments under thisAgreement and acting through its Facility Office unless it has received notless than five (5) Business Days prior notice from that Lender to thecontrary in accordance with the terms of this Agreement.

###  

### (b)                                 EachLender shall supply the COFACE Agent with any information required by theCOFACE Agent in order to calculate the Mandatory Cost in accordance with Schedule4 (*Mandatory Cost Formula*).

###  

## **28.15**                    CreditAppraisal by the Lenders

## ** **

Withoutaffecting the responsibility of the Borrower for information supplied by it oron its behalf in connection with any Finance Document, each Lender confirms tothe COFACE Agent, the Security Agent and the Mandated Lead Arrangers that ithas been, and will continue to be, solely responsible for making its ownindependent appraisal and investigation of all risks arising under or inconnection with any Finance Document including but not limited to:

 

### (a)                                  thefinancial condition, status and nature of the Group;

###  

### (b)                                 thelegality, validity, effectiveness, adequacy or enforceability of any FinanceDocument and any other agreement, arrangement or document entered into, made orexecuted in anticipation of, under or in connection with any Finance Document;

###  

### (c)                                  whetherthat Lender has recourse, and the nature and extent of that recourse, againstany Party or any of its respective assets under or in connection with anyFinance Document, the transactions contemplated by the Finance 

###  

### 146

### 

###  

### Documents or any other agreement, arrangement ordocument entered into, made or executed in anticipation of, under or inconnection with any Finance Document; and

###  

### (d)                                 theadequacy, accuracy and/or completeness of any information provided by theCOFACE Agent, the Security Agent, any Party or by any other person under or inconnection with any Finance Document, the transactions contemplated by theFinance Documents or any other agreement, arrangement or document entered into,made or executed in anticipation of, under or in connection with any FinanceDocument.

###  

## **28.16**                    ReferenceBanks

## ** **

If a Reference Bank who is also a Lender(or, if a Reference Bank is not a Lender, the Lender of which it is anAffiliate) ceases to be a Lender, the COFACE Agent shall (in consultation withthe Borrower) appoint another Lender or an Affiliate of a Lender to replace thatReference Bank.

 

## **28.17**                    COFACEAgent’s and Security Agent’s Management Time

## ** **

Any amounts payable to the COFACE Agent orthe Security Agent (as the case may be) under Clause 15.3 (*Indemnity to the COFACE Agent*), Clause 15.4 (*Indemnity to the Security Agent*) and Clause 17 (*Costs and expenses*) shall include the cost of utilising theCOFACE Agent’s or the Security Agent’s management time or other resources andwill be calculated on the basis of such reasonable daily or hourly rates as theCOFACE Agent or the Security Agent may notify to the Borrower and the Lenders.

 

## **28.18**                    Deductionfrom Amounts Payable by the COFACE Agent and the Security Agent

## ** **

If any Party owes an amount to the COFACEAgent or the Security Agent under the Finance Documents, the COFACE Agent orthe Security Agent (as the case may be) may, after giving notice to that Partyand *provided that* this will not result inbreach of any applicable currency control regulations by the Borrower, deductan amount not exceeding that amount from any payment to that Party which theCOFACE Agent or the Security Agent would otherwise be obliged to make under theFinance Documents and apply the amount deducted in or towards satisfaction ofthe amount owed.  For the purposes of theFinance Documents, that Party shall be regarded as having received any amountso deducted.

 

## **28.19**                    SecurityAgent

## ** **

### (a)                                  Theprovisions of Schedule 6 (*The Security Agent*)shall bind each Party.

###  

### (b)                                 TheSecurity Agent shall promptly transfer to the COFACE Agent any amounts receivedby it under the Finance Documents for application by the COFACE Agent inaccordance with the order set out in Clause 31.6 (*PartialPayments*).  The Security Agentshall be obliged to make such transfer only to the extent it has actuallyreceived such amount.

###  

### 147

### 

###  

### (c)                                  Atthe request of the Security Agent, the COFACE Agent shall notify the SecurityAgent, and shall provide a copy of such notification to the Borrower, ofamounts due to any Party under this Agreement, and the due date for suchamounts.  The Security Agent may acceptsuch notifications as conclusive evidence of the matters to which they relate.

###  

## **28.20**                    NoIndependent Power

## ** **

### (a)                                  TheLenders shall not have any independent power to enforce, or have recourse to,any of the Liens expressed to be created under the Security Documents, or toexercise any rights or powers arising under the Security Documents exceptthrough the Security Agent.

###  

### (b)                                 ThisClause is for the benefit of the Finance Parties only.

###  

# **29.**                               CONDUCT OF BUSINESS BY THE FINANCE PARTIES

# ** **

No provisionof this Agreement will:

 

### (a)                                  interferewith the right of any Finance Party to arrange its affairs (tax or otherwise)in whatever manner it thinks fit;

###  

### (b)                                 obligeany Finance Party to investigate or claim any credit, relief, remission orrepayment available to it or the extent, order and manner of any claim; or

###  

### (c)                                  obligeany Finance Party to disclose any information relating to its affairs (tax orotherwise) or any computations in respect of Tax.

###  

# **30.**                               SHARING AMONG THE FINANCE PARTIES

# ** **

## **30.1**                          Paymentsto Finance Parties

## ** **

If a FinanceParty (a “**Recovering Finance Party**”) receives orrecovers any amount from an Obligor other than in accordance withClause 31(*PaymentMechanics*) and applies that amount to a payment due under theFinance Documents then:

 

### (a)                                  theRecovering Finance Party shall, within three (3) Business Days, notifydetails of the receipt or recovery, to the COFACE Agent;

###  

### (b)                                 theCOFACE Agent shall determine whether the receipt or recovery is in excess ofthe amount the Recovering Finance Party would have been paid had the receipt orrecovery been received or made by the COFACE Agent and distributed inaccordance with Clause 31(*Payment Mechanics*), without taking account of any Tax whichwould be imposed on the COFACE Agent in relation to the receipt, recovery ordistribution; and

###  

### (c)                                  theRecovering Finance Party shall, within three (3) Business Days of demandby the COFACE Agent, pay to the COFACE Agent an amount (the “**Sharing Payment**”) equal to such receipt orrecovery less any amount which the Agent determines may be retained by theRecovering Finance Party as its share of any payment to be made, in accordancewith Clause 31.6 (*Partial Payments*).

###  

### 148

### 

 

## **30.2**                          Redistributionof Payments

## ** **

The COFACE Agent shall treat the SharingPayment as if it had been paid by the relevant Obligor and distribute itbetween the Finance Parties (other than the Recovering Finance Party) inaccordance with Clause 31.6 (*Partial Payments*).

 

## **30.3**                          RecoveringFinance Party’s Rights

## ** **

### (a)                                  On adistribution by the COFACE Agent under Clause 30.2 (*Redistributionof Payments*), the Recovering Finance Party will be subrogated to therights of the Finance Parties which have shared in the redistribution.

###  

### (b)                                 Ifand to the extent that the Recovering Finance Party is not able to rely on itsrights under paragraph (a) above, the relevant Obligor shall beliable to the Recovering Finance Party for a debt equal to the Sharing Paymentwhich is immediately due and payable.

 

## **30.4**                          Reversalof Redistribution

## ** **

If any part ofthe Sharing Payment received or recovered by a Recovering Finance Party becomesrepayable and is repaid by that Recovering Finance Party, then:

 

### (a)                                  eachFinance Party which has received a share of the relevant Sharing Paymentpursuant to Clause 30.2 (*Redistribution of Payments*)shall, upon request of the COFACE Agent, pay to the COFACE Agent for account ofthat Recovering Finance Party an amount equal to the appropriate part of its shareof the Sharing Payment (together with an amount as is necessary to reimbursethat Recovering Finance Party for its proportion of any interest on the SharingPayment which that Recovering Finance Party is required to pay); and

###  

### (b)                                 thatRecovering Finance Party’s rights of subrogation in respect of anyreimbursement shall be cancelled and the relevant Obligor will be liable to thereimbursing Finance Party for the amount so reimbursed.

###  

## **30.5**                          Exceptions

## ** **

### (a)                                  ThisClause 30 shall not apply to the extent that the Recovering Finance Partywould not, after making any payment pursuant to this Clause, have a valid andenforceable claim against the relevant Obligor.

###  

### (b)                                 ARecovering Finance Party is not obliged to share with any other Finance Partyany amount which the Recovering Finance Party has received or recovered as aresult of taking legal or arbitration proceedings, if:

###  

#### (i)                                     itnotified that other Finance Party of the legal or arbitration proceedings; and

####  

#### (ii)                                  thatother Finance Party had an opportunity to participate in those legal orarbitration proceedings but did not do so as soon as reasonably practicablehaving received notice and did not take separate legal or arbitrationproceedings.

 

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# **31.**                               PAYMENT MECHANICS

# ** **

## **31.1**                          Paymentsto the COFACE Agent

## ** **

### (a)                                  Oneach date on which the Borrower or a Lender is required to make a payment undera Finance Document (subject to Clause 31.12 (*Payments tothe Security Agent*), the Borrower or Lender shall make the sameavailable to the COFACE Agent (unless a contrary indication appears in aFinance Document) for value on the due date at the time and in such fundsspecified by the COFACE Agent as being customary at the time for settlement oftransactions in the relevant currency in the place of payment.

###  

### (b)                                 Allpayments to be made by the Borrower under this Agreement shall be made inDollars in immediately available funds to the account of the COFACE Agent withaccount *No. 20019409300136* with BNP ParibasS.A., The Equitable Building, 787 Seventh Avenue, New York, SWIFTcode BNPAUS3NXXX, in favour of BNP PARIBAS LSI-BOCI, 150, Rue du FaubourgPoissonnière 75010 PARISSWIFT code BNPAFRPPXXX, or to such other accountas the COFACE Agent may from time to time designate to the Borrower in writing.

###  

### (c)                                  Forany payment to be made by the Borrower, the Borrower shall ensure that theCOFACE Agent receives a swift advice of such payment from the Borrower’s bankno later than the Business Day immediately preceding the date of suchpayment.  The swift message shall be sentto BNPAFRPPACH attention BOCI Buyers Credits with referencesUSA/GLOBALSTAR/Loan Agreement dated 5 June 2009 or such other account inthe principal financial centre of the country of that currency with such bankas the COFACE Agent specifies.

###  

## **31.2**                          Evidenceof Financial Indebtedness

## ** **

### (a)                                  EachLoan made by a Lender shall be evidenced by one (1) or more accountsor records maintained by such Lender and by the COFACE Agent in the ordinarycourse of business.  The accounts orrecords maintained by the COFACE Agent and each Lender shall be conclusiveabsent manifest error of the amount of any Loan made by the Lenders to theBorrower and the interest and payments thereon.

###  

### (b)                                 Anyfailure to so record or any error in doing so shall not, however, limit orotherwise affect the obligation of the Borrower under this Agreement to pay anyamount owing with respect to the Obligations. If there is any conflict between the accounts and records maintained byany Lender and the accounts and records of the COFACE Agent in respect of suchmatters, the accounts and records of the COFACE Agent shall control in theabsence of manifest error.

###  

### (c)                                  Immediatelyprior to the first Utilisation Date, the Borrower shall execute and deliver to eachLender (through the COFACE Agent) a Promissory Note which shall evidence suchLender’s Loan (including principal and interest) and, in addition to suchaccounts or records.  Each Lender mayattach 

 

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### schedules to its Promissory Notes and endorsethereon the date, amount and maturity of its Loans and payments with respectthereto.

 

## **31.3**                          Distributionsby the COFACE Agent

## ** **

Each payment received by the COFACE Agentunder the Finance Documents for another Party shall, subject to Clause 31.4 (*Distributionsto the Borrower*) and Clause 31.5(*Clawback*) and Clause 31.12 (*Payments tothe Security Agent*), be made available by the COFACE Agent as soonas practicable after receipt to the Party entitled to receive payment inaccordance with this Agreement (in the case of a Lender, for the account of itsFacility Office), to such account as that Party may notify to the COFACE Agentby not less than five (5) Business Days’ notice with a bank in theprincipal financial centre of the country of that currency.

 

## **31.4**                          Distributionsto the Borrower

## ** **

The COFACE Agent and the Security Agent may(with the consent of the Obligor or in accordance with Clause 32 (*Set-off*)) apply any amount received by it for that Obligorin or towards payment (on the date and in the currency and funds of receipt) ofany amount due from that Obligor under the Finance Documents or in or towardspurchase of any amount of any currency to be so applied.

 

## **31.5**                          Clawback

## ** **

### (a)                                  Wherea sum is to be paid to the COFACE Agent or the Security Agent under the FinanceDocuments for another Party, the COFACE Agent is not obliged to pay that sum tothat other Party (or to enter into or perform any related exchange contract)until it has been able to establish to its satisfaction that it has actuallyreceived that sum.

###  

### (b)                                 Ifthe COFACE Agent or the Security Agent pays an amount to another Party and itproves to be the case that the COFACE Agent had not actually received thatamount, then the Party to whom that amount (or the proceeds of any relatedexchange contract) was paid by the COFACE Agent or the Security Agent shall ondemand refund the same to the COFACE Agent together with interest on thatamount from the date of payment to the date of receipt by the COFACE Agent orthe Security Agent, calculated by it to reflect its cost of funds.

###  

## **31.6**                          PartialPayments

## ** **

### (a)                                  Ifthe COFACE Agent receives a payment that is insufficient to discharge all theamounts then due and payable by an Obligor under the Finance Documents, theCOFACE Agent shall apply that payment towards the obligations of that Obligorunder the Finance Documents in the following order:

###  

#### (i)                                     ***first***, in or towardspayment *pro rata* of any unpaid fees, costs andexpenses of the COFACE Agent, the Security Agent or the Mandated Lead Arrangersunder the Finance Documents;

 

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#### (ii)                                  ***secondly***, in or towardspayment *pro rata* of any accrued interest, fee orcommission due to the Finance Parties but unpaid under this Agreement;

####  

#### (iii)                               ***thirdly***, in or towardspayment *pro rata* of any principal due but unpaidunder this Agreement; and

####  

#### (iv)                              ***fourthly***, in or towardspayment *pro rata* of any other sum due but unpaidunder the Finance Documents.

####  

### (b)                                 TheCOFACE Agent shall, if so directed by the Majority Lenders, vary the order setout in paragraphs (a)(ii) to(iv) above.

###  

### (c)                                  Paragraphs (a) and(b) above will override anyappropriation made by an Obligor.

###  

## **31.7**                          Noset-off by the Borrower

## ** **

All payments to be made by the Borrowerunder the Finance Documents shall be calculated and be made without (and freeand clear of any deduction for) set-off or counterclaim.

 

## **31.8**                          BusinessDays

## ** **

### (a)                                  Anypayment which is due to be made on a day that is not a Business Day shall bemade on the next Business Day in the same calendar month (if there is one) orthe preceding Business Day (if there is not).

###  

### (b)                                 Duringany extension of the due date for payment of any principal or Unpaid Sum underthis Agreement interest is payable on the principal or Unpaid Sum at the ratepayable on the original due date.

###  

## **31.9**                          Currencyof Account

## ** **

### (a)                                  Subjectto paragraphs (b) and (c) below,Dollars is the currency of account and payment for any sum due from theBorrower under any Finance Document.

###  

### (b)                                 Eachpayment in respect of costs, expenses or Taxes shall be made in the currency inwhich the costs, expenses or Taxes are incurred.

###  

### (c)                                  Anyamount expressed to be payable in a currency other than Dollars shall be paidin that other currency.

###  

## **31.10**                    Changeof Currency

## ** **

### (a)                                  Unlessotherwise prohibited by law, if more than one currency or currency unit are atthe same time recognised by the central bank of any country as the lawfulcurrency of that country, then:

###  

#### (i)                                     anyreference in the Finance Documents to, and any obligations arising under theFinance Documents in, the currency of that country shall be translated into, orpaid in, the currency or currency unit of that country 

 

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#### designated by the COFACE Agent (after consultationwith the Borrower); and

####  

#### (ii)                                  anytranslation from one currency or currency unit to another shall be at theofficial rate of exchange recognised by the central bank for the conversion ofthat currency or currency unit into the other, rounded up or down by the COFACEAgent (acting reasonably).

####  

### (b)                                 If achange in any currency of a country occurs, this Agreement will, to the extentthe COFACE Agent (acting reasonably and after consultation with the Borrower)specifies to be necessary, be amended to comply with any generally acceptedconventions and market practice in the London interbank market and otherwise toreflect the change in currency.

###  

## **31.11**                    Disruptionto Payment Systems etc.

## ** **

If either theCOFACE Agent determines (in its discretion) that a Disruption Event hasoccurred or the COFACE Agent is notified by the Borrower that a DisruptionEvent has occurred:

 

### (a)                                  theCOFACE Agent may, and shall if requested to do so by the Borrower, consult withthe Borrower with a view to agreeing with the Borrower such changes to theoperation or administration of the Facility as the COFACE Agent may deemnecessary in the circumstances;

###  

### (b)                                 theCOFACE Agent shall not be obliged to consult with the Borrower in relation toany changes mentioned in paragraph (a) if, in its opinion, it is notpracticable to do so in the circumstances and, in any event, shall have noobligation to agree to such changes;

###  

### (c)                                  theCOFACE Agent may consult with the Finance Parties in relation to any changesmentioned in paragraph (a) but shall not be obliged to do so if, inits opinion, it is not practicable to do so in the circumstances;

###  

### (d)                                 anysuch changes agreed upon by the COFACE Agent and the Borrower shall (whether ornot it is finally determined that a Disruption Event has occurred) be bindingupon the Parties as an amendment to (or, as the case may be, waiver of) theterms of the Finance Documents notwithstanding the provisions of Clause 37 (*Amendments and waivers*);

###  

### (e)                                  theCOFACE Agent shall not be liable for any damages, costs or losses whatsoever(including, without limitation for negligence, gross negligence or any othercategory of liability whatsoever but not including any claim based on the fraudof the COFACE Agent) arising as a result of its taking, or failing to take, anyactions pursuant to or in connection with this Clause 31.11 (*Disruption to Payment Systems etc.*); and

###  

### (f)                                    theCOFACE Agent shall notify the Finance Parties of all changes agreed pursuant toparagraph (d) above.

 

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## **31.12**                    Paymentsto the Security Agent

## ** **

Notwithstanding any other provision of anyFinance Document, after a notice has been given to the Borrower underClause 24 (*Remedies Upon an Event of Default*),and at any time after any Liens created by or pursuant to any Security Documentbecomes enforceable, the Security Agent may require the Borrower to pay allsums due under any Finance Document as the Security Agent may direct forapplication in accordance with the terms of the Security Documents.

 

# **32.**                               SET-OFF

# ** **

If an Event of Default has occurred and iscontinuing, a Finance Party may set-off any matured obligation due from anObligor under the Finance Documents (to the extent beneficially owned by thatFinance Party) against any matured obligation owed by that Finance Party tothat Obligor, regardless of the place of payment, booking branch or currency ofeither obligation.  If the obligationsare in different currencies, the Finance Party may convert either obligation ata market rate of exchange in its usual course of business for the purpose ofthe set-off.  Following the exercise of aright of set-off under this Agreement, the relevant Finance Party shall notifythe Borrower.

 

# **33.**                               NOTICES

# ** **

## **33.1**                          Communicationsin Writing

## ** **

Any communication to be made under or inconnection with the Finance Documents shall be made in writing and, unlessotherwise stated, may be made by fax or letter.

 

## **33.2**                          Addresses

## ** **

The addressand fax number (and the department or officer, if any, for whose attention thecommunication is to be made) of each Party for any communication or document tobe made or delivered under or in connection with the Finance Documents is:

 

### (a)                                  inthe case of the Borrower, that identified with its name below;

###  

### (b)                                 inthe case of each Lender, that notified in writing to the COFACE Agent on orprior to the date on which it becomes a Party; and

###  

### (c)                                  inthe case of the COFACE Agent and the Security Agent, that identified with itsname below,

###  

or any substitute address or fax number ordepartment or officer as the Party may notify to the COFACE Agent (or theCOFACE Agent may notify to the other Parties, if a change is made by the COFACEAgent) by not less than five (5) Business Days’ notice.

 

## **33.3**                          Delivery

## ** **

### (a)                                  Anycommunication or document made or delivered by one person to another under orin connection with the Finance Documents will only be effective:

###  

#### (i)                                     ifby way of fax, when received in legible form; or

 

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#### (ii)                                  ifby way of letter, when it has been left at the relevant address or five (5) BusinessDays after being deposited in the post postage prepaid in an envelope addressedto it at that address;

####  

and, if a particular department or officeris specified as part of its address details provided under Clause 33.2 (*Addresses*), if addressed to that department or officer.

 

### (b)                                 Anycommunication or document to be made or delivered to the COFACE Agent, theSecurity Agent or the Mandated Lead Arrangers will be effective only whenactually received by the COFACE Agent, the Security Agent or such Mandated LeadArranger and then only if it is expressly marked for the attention of thedepartment or officer identified with the COFACE Agent’s, the Security Agent’sor such Mandated Lead Arranger’s signature below (or any substitute departmentor officer as the COFACE Agent, the Security Agent or such Mandated LeadArranger shall specify for this purpose).

###  

### (c)                                  Allnotices from or to an Obligor shall be sent through the COFACE Agent.

###  

### (d)                                 Anycommunication or document made or delivered to the Borrower in accordance withthis Clause will be deemed to have been made or delivered to each of theObligors.

###  

## **33.4**                          Notificationof Address and Fax Number

## ** **

Promptly upon receipt of notification of anaddress or fax number or change of address or fax number pursuant toClause 33.2 (*Addresses*) or changing its ownaddress or fax number, the COFACE Agent shall notify the other Parties.

 

## **33.5**                          ElectronicCommunication

## ** **

### (a)                                  Anycommunication to be made between the COFACE Agent and a Lender under or inconnection with the Finance Documents may be made by electronic mail or otherelectronic means, if the COFACE Agent and the relevant Lender:

###  

#### (i)                                     agreethat, unless and until notified to the contrary, this is to be an accepted formof communication;

####  

#### (ii)                                  notifyeach other in writing of their electronic mail address and/or any otherinformation required to enable the sending and receipt of information by thatmeans; and

####  

#### (iii)                               notifyeach other of any change to their address or any other such informationsupplied by them.

####  

### (b)                                 Anyelectronic communication made between the COFACE Agent and a Lender will beeffective only when actually received in readable form and in the case of anyelectronic communication made by a Lender to the COFACE Agent only if it isaddressed in such a manner as the COFACE Agent shall specify for this purpose.

 

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## **33.6**                          EnglishLanguage

## ** **

### (a)                                  Anynotice given under or in connection with any Finance Document must be inEnglish.

###  

### (b)                                 Allother documents provided under or in connection with any Finance Document mustbe:

###  

#### (i)                                     inEnglish; or

####  

#### (ii)                                  ifnot in English, and if so required by the COFACE Agent, accompanied by acertified English translation and, in this case, the English translation willprevail unless the document is a constitutional, statutory or other officialdocument.

####  

# **34.**                               CALCULATIONS AND CERTIFICATES

# ** **

## **34.1**                          Accounts

## ** **

In any litigation or arbitrationproceedings arising out of or in connection with a Finance Document, theentries made in the accounts maintained by a Finance Party are *prima facie* evidence of the matters to which they relate.

 

## **34.2**                          Certificatesand Determinations

## ** **

Any certification or determination by aFinance Party of a rate or amount under any Finance Document is, in the absenceof manifest error, conclusive evidence of the matters to which it relates.

 

## **34.3**                          DayCount Convention

## ** **

Any interest, commission or fee accruingunder a Finance Document will accrue from day to day and is calculated on thebasis of the actual number of days elapsed and a year of three hundred andsixty (360) days or, in any case where the practice in the Londoninterbank market differs, in accordance with that market practice.

 

# **35.**                               PARTIAL INVALIDITY

# ** **

If, at any time, any provision of theFinance Documents is or becomes illegal, invalid or unenforceable in anyrespect under any law of any jurisdiction, neither the legality, validity orenforceability of the remaining provisions nor the legality, validity orenforceability of such provision under the law of any other jurisdiction willin any way be affected or impaired.

 

# **36.**                               REMEDIES AND WAIVERS

# ** **

No failure to exercise, nor any delay inexercising, on the part of any Finance Party, any right or remedy under theFinance Documents shall operate as a waiver, nor shall any single or partialexercise of any right or remedy prevent any further or other exercise or theexercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative andnot exclusive of any rights or remedies provided by law.

 

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# **37.**                               AMENDMENTS AND WAIVERS

# ** **

## **37.1**                          RequiredConsents

## ** **

### (a)                                  Subjectto Clause 37.2 (*Exceptions*) anyterm of the Finance Documents may be amended or waived only with the consent ofthe Majority Lenders and the Obligors and following consultation by the COFACEAgent with COFACE.  Any such amendment orwaiver will be binding on all Parties.

###  

### (b)                                 TheCOFACE Agent may effect, on behalf of any Finance Party, any amendment orwaiver permitted by this Clause.

###  

## **37.2**                          Exceptions

## ** **

### (a)                                  Anamendment or waiver that has the effect of changing or which relates to:

###  

#### (i)                                     thedefinition of “*Majority Lenders*” inClause 1.1 (*Definitions*);

####  

#### (ii)                                  anextension to the date of payment of any amount under the Finance Documents;

####  

#### (iii)                               areduction in the Applicable Margin or a reduction in the amount of any paymentof principal, interest, fees or commission payable;

####  

#### (iv)                              anincrease in or an extension of any Commitment;

####  

#### (v)                                 achange to an Obligor;

####  

#### (vi)                              anyprovision which expressly requires the consent of all the Lenders;

####  

#### (vii)                           Clause 2.2(*Finance Parties’ Rights and Obligations*),Clause 26 (*Changes to the Lenders*) or thisClause 37;

####  

#### (viii)                        thenature or scope of the assets of the Borrower which from time to time are, orare expressed to be, the subject of a Lien under the Security Documents; or

####  

#### (ix)                                therelease of any Lien granted in accordance with the Security Documents or thegranting of any Lien required under the terms of this Agreement,

####  

shall not be made without the prior consentof all the Lenders.

 

### (b)                                 Anamendment or waiver which relates to the rights or obligations of the COFACEAgent, the Security Agent, and/or a Mandated Lead Arranger may not be effectedwithout the consent of the COFACE Agent, the Security Agent, and/or theMandated Lead Arranger (as the case may be).

 

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# **38.**                               COUNTERPARTS

# ** **

Each Finance Document may be executed inany number of counterparts, and this has the same effect as if the signatureson the counterparts were on a single copy of the Finance Document.

 

# **39.**                               GOVERNING LAW

# ** **

This Agreement and any non-contractualobligations arising out of or in connection with it are governed by Englishlaw.

 

# **40.**                               ENFORCEMENT

# ** **

## **40.1**                          Jurisdiction

## ** **

### (a)                                  Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Agreement (including a dispute relating to theexistence, validity or termination of this Agreement or any non-contractual obligationarising out of or in connection with this Agreement) (a “**Dispute**”).

###  

### (b)                                 TheParties agree that the courts of England are the most appropriate andconvenient courts to settle Disputes and accordingly no Party will argue to thecontrary.

###  

### (c)                                  ThisClause 40.1 (*Jurisdiction*) is for the benefitof the Finance Parties only.  As aresult, no Finance Party shall be prevented from taking proceedings relating toa Dispute in any other courts with jurisdiction.  To the extent allowed by law, the Finance Partiesmay take concurrent proceedings in any number of jurisdictions.

###  

## **40.2**                          Serviceof Process

## ** **

Withoutprejudice to any other mode of service allowed under any relevant law, theBorrower:

 

### (a)                                  irrevocablyappoints WFW Legal Services Limited of 15 Appold Street, London EC2A 2HBas its agent for service of process in relation to any proceedings before theEnglish courts in connection with any Finance Document; and

###  

### (b)                                 agreesthat failure by a process agent to notify the Borrower of the process will notinvalidate the proceedings concerned.

###  

## **40.3**                          Waiverof Immunity

## ** **

To the extent that the Borrower may in anyjurisdiction claim for itself or its assets or revenues immunity from suit,execution, attachment (whether in aid of execution, before judgment or otherwise)or other legal process and to the extent that in any such jurisdiction theremay be attributed to itself, its assets or revenues such immunity (whether ornot claimed), the Borrower irrevocably agrees not to claim, and irrevocablywaives, such immunity to the full extent permitted by the laws of suchjurisdiction.

 

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**This Agreement has been enteredinto on the date stated at the beginning of this Agreement.**

 

159

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**SIGNATORIES**

 

**THE BORROWER**

 

**GLOBALSTAR, INC.**

 
| By:      |   | /s/ James Monroe III           |   |
|----------|--------|--------------------------------|--------|
|     |   |                           |   |
| Name:    |   | James Monroe III               |   |
|     |   |                           |   |
| Title:   |   | Chief Executive Officer        |   |
|     |   |                           |   |
| Date:    |   | 5 June 2009               |   |
|     |   |                           |   |
| Address: |   | Globalstar, Inc.          |   |
|     |   | 461 South Milpitas Boulevard   |   |
|     |   | Building 5, Suite 1 and 2 |   |
|     |   | Milpitas, CA 95035             |   |
|     |   | United States of America       |   |

 

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**THE COFACE AGENT**

 

**BNP PARIBAS**

** **
| By:      |   | /s/ Debbie Hirst                                          |   |
|----------|--------|-----------------------------------------------------------|--------|
|     |   |                                                      |   |
| Name:    |   | Debbie Hirst                                              |   |
|     |   |                                                      |   |
| Title:   |   | Head of Export Finance - Americas                         |   |
|     |   |                                                      |   |
| Date:    |   | 5 June 2009                                          |   |
|     |   |                                                      |   |
| Address: |   | 16 boulevard des Italiens,  75009 Paris, France |   |

 

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**MANDATED LEAD ARRANGER**

 

**BNP PARIBAS**

 
| By:      |   | /s/ Debbie Hirst                                          |   |
|----------|--------|-----------------------------------------------------------|--------|
|     |   |                                                      |   |
| Name:    |   | Debbie Hirst                                              |   |
|     |   |                                                      |   |
| Title:   |   | Head of Export Finance - Americas                         |   |
|     |   |                                                      |   |
| Date:    |   | 5 June 2009                                          |   |
|     |   |                                                      |   |
| Address: |   | 16 boulevard des Italiens,  75009 Paris, France |   |

 

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**MANDATED LEAD ARRANGER**

 

**SOCIÉTÉ GÉNÉRALE**

 
| By:      |   | /s/ Olivier Royer                                                                         |   |
|----------|--------|-------------------------------------------------------------------------------------------|--------|
|     |   |                                                                                      |   |
| Name:    |   | Olivier Royer                                                                             |   |
|     |   |                                                                                      |   |
| Title:   |   | Managing Director                                                                         |   |
|     |   |                                                                                      |   |
| Date:    |   | 5 June 2009                                                                          |   |
|     |   |                                                                                      |   |
| Address: |   | Tour Société Générale, 17, cours Valmy,  92800 Puteaux, Paris, France |

 

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**MANDATED LEAD ARRANGER**

 

**NATIXIS**

 
| By:      |   | /s/ Jean-Louis Viala                                        |   |
|----------|--------|-------------------------------------------------------------|--------|
|     |   |                                                        |   |
| Name:    |   | Jean-Louis VIALA                                            |   |
|     |   |                                                        |   |
| Title:   |   | Structured Export Finance, Director                         |   |
|     |   |                                                        |   |
| Date:    |   | 5 June 2009                                            |   |
|     |   |                                                        |   |
| Address: |   | NATIXIS, 68-76 Quai de la Rapée, 75012,  Paris, France |   |
|     |   |                                                        |   |
|     |   |                                                        |   |
| By:      |   | /s/ Arnaud Sarret                                           |   |
|     |   |                                                        |   |
| Name:    |   | Arnaud SARRET                                               |   |
|     |   |                                                        |   |
| Title:   |   | Structured Export Finance, Director                         |   |
|     |   |                                                        |   |
| Date:    |   | 5 June 2009                                            |   |
|     |   |                                                        |   |
| Address: |   | NATIXIS, 68-76 Quai de la Rapée, 75012,  Paris, France |   |

 

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**MANDATED LEAD ARRANGER**

 

**CALYON**

 
| By:      |   | /s/ Didier Laffon              |   |
|----------|--------|--------------------------------|--------|
|     |   |                           |   |
| Name:    |   | Didier Laffon                  |   |
|     |   |                           |   |
| Title:   |   | Executive Director             |   |
|     |   |                           |   |
| Date:    |   | 5 June 2009               |   |
|     |   |                           |   |
|     |   |                           |   |
| Address: |   |                           |   |
|     |   |                           |   |
|     |   |                           |   |
| By:      |   | /s/ Frédéric Bambuck |   |
|     |   |                           |   |
| Name:    |   | Frédéric Bambuck     |   |
|     |   |                           |   |
| Title:   |   | Director                       |   |
|     |   |                           |   |
| Date:    |   | 5 June 2009               |   |
|     |   |                           |   |
| Address: |   |                           |   |

 

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**MANDATED LEAD ARRANGER**

 

**CRÉDIT INDUSTRIEL ET COMMERCIAL**

 
| By:      |   | /s/ Jacques-Philippe Menville      |   |
|----------|--------|------------------------------------|--------|
|     |   |                               |   |
| Name:    |   | Jacques-Philippe Menville          |   |
|     |   |                               |   |
| Title:   |   | Senior Vice-President              |   |
|     |   |                               |   |
| Date:    |   | 5 June 2009                   |   |
|     |   |                               |   |
| Address: |   | 6 avenue de Provence, 75009, Paris |   |
|     |   |                               |   |
| By:      |   | /s/ Michêle Patri             |   |
|     |   |                               |   |
| Name:    |   | Michêle Patri                 |   |
|     |   |                               |   |
| Title:   |   | Assistant Vice-President           |   |
|     |   |                               |   |
| Date:    |   | 5 June 2009                   |   |
|     |   |                               |   |
| Address: |   | 6 avenue de Provence, 75009, Paris |   |

 

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**THE SECURITY AGENT**

 

**BNP PARIBAS**

 
| By:      |   | /s/ Debbie  Hirst                                         |   |
|----------|--------|-----------------------------------------------------------|--------|
|     |   |                                                      |   |
| Name:    |   | Debbie Hirst                                              |   |
|     |   |                                                      |   |
| Title:   |   | Head of  Export Finance - Americas                        |   |
|     |   |                                                      |   |
| Date:    |   | 5  June 2009                                         |   |
|     |   |                                                      |   |
| Address: |   | 16 boulevard  des Italiens, 75009 Paris, France |   |

 

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**THE LENDERS**

 

**BNP PARIBAS**

 
| By:      |   | /s/ Debbie Hirst                                          |   |
|----------|--------|-----------------------------------------------------------|--------|
|     |   |                                                      |   |
| Name:    |   | Debbie Hirst                                              |   |
|     |   |                                                      |   |
| Title:   |   | Head of Export Finance - Americas                         |   |
|     |   |                                                      |   |
| Date:    |   | 5 June 2009                                          |   |
|     |   |                                                      |   |
| Address: |   | 16 boulevard des Italiens,  75009 Paris, France |   |

 

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**THE LENDERS**

 

**SOCIÉTÉ GÉNÉRALE**

 
| By:      |   | /s/ Olivier Royer                                                                         |   |
|----------|--------|-------------------------------------------------------------------------------------------|--------|
|     |   |                                                                                      |   |
| Name:    |   | Olivier Royer                                                                             |   |
|     |   |                                                                                      |   |
| Title:   |   | Managing Director                                                                         |   |
|     |   |                                                                                      |   |
| Date:    |   | 5 June 2009                                                                          |   |
|     |   |                                                                                      |   |
| Address: |   | Tour Société  Générale, 17, cours Valmy, 92800 Puteaux, Paris, France |

 

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**THE LENDERS**

 

**NATIXIS**

 
| By:      |   | /s/ Jean-Louis Viala                                        |   |
|----------|--------|-------------------------------------------------------------|--------|
|     |   |                                                        |   |
| Name:    |   | Jean-Louis VIALA                                            |   |
|     |   |                                                        |   |
| Title:   |   | Structured Export Finance, Director                         |   |
|     |   |                                                        |   |
| Date:    |   | 5 June 2009                                            |   |
|     |   |                                                        |   |
| Address: |   | NATIXIS, 68-76 Quai de la Rapée, 75012,  Paris, France |   |
|     |   |                                                        |   |
|     |   |                                                        |   |
| By:      |   | /s/ Arnaud Sarret                                           |   |
|     |   |                                                        |   |
| Name:    |   | Arnaud SARRET                                               |   |
|     |   |                                                        |   |
| Title:   |   | Structured Export Finance, Director                         |   |
|     |   |                                                        |   |
| Date:    |   | 5 June 2009                                            |   |
|     |   |                                                        |   |
| Address: |   | NATIXIS, 68-76 Quai de la Rapée, 75012,  Paris, France |   |

 

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**THE LENDERS**

 

**CALYON**

 
| By:      |   | /s/ Didier Laffon              |   |
|----------|--------|--------------------------------|--------|
|     |   |                           |   |
| Name:    |   | Didier Laffon                  |   |
|     |   |                           |   |
| Title:   |   | Executive Director             |   |
|     |   |                           |   |
| Date:    |   | 5 June 2009               |   |
|     |   |                           |   |
| Address: |   |                           |   |
|     |   |                           |   |
|     |   |                           |   |
| By:      |   | /s/ Frédéric Bambuck |   |
|     |   |                           |   |
| Name:    |   | Frédéric Bambuck     |   |
|     |   |                           |   |
| Title:   |   | Director                       |   |
|     |   |                           |   |
| Date:    |   | 5 June 2009               |   |
|     |   |                           |   |
| Address: |   |                           |   |

 

171

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**CRÉDITINDUSTRIEL ET COMMERCIAL**

 
| By:      |   | /s/  Jacques-Philippe Menville      |   |
|----------|--------|-------------------------------------|--------|
|     |   |                                |   |
| Name:    |   | Jacques-Philippe  Menville          |   |
|     |   |                                |   |
| Title:   |   | Senior  Vice-President              |   |
|     |   |                                |   |
| Date:    |   | 5 June 2009                         |   |
|     |   |                                |   |
| Address: |   | 6 avenue de  Provence, 75009, Paris |   |
|     |   |                                |   |
|     |   |                                |   |
| By:      |   | /s/ Michêle  Patri             |   |
|     |   |                                |   |
| Name:    |   | Michêle  Patri                 |   |
|     |   |                                |   |
| Title:   |   | Assistant  Vice-President           |   |
|     |   |                                |   |
| Date:    |   | 5 June 2009                         |   |
|     |   |                                |   |
| Address: |   | 6 avenue de  Provence, 75009, Paris |   |

 

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