DETERMINED AS
OF THE CLOSE OF BUSINESS ON THE BUSINESS DAY PRECEDING THE DETERMINATION DATE,
(3)
ALL CALCULATIONS UNDER CLAUSES (IV) AND
(V) OF "TOTAL CASH TO BE MADE AVAILABLE BY THE BUYERS" SHALL BE MADE AS OF THE
CLOSE OF BUSINESS ON THE BUSINESS DAY PRECEDING THE DETERMINATION DATE, AND
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
65
(4)
CLAUSE (VII) OF THE DEFINITION OF "TOTAL
CASH TO BE MADE AVAILABLE BY THE BUYERS" IS EQUAL TO HALF OF THE AMOUNT OF ANY
PROCEEDS OF ANY SALE OR LEASE OF SOLIDARIDAD 2 RECEIVED BY THE COMPANY PRIOR TO
THE DETERMINATION DATE OR TO BE RECEIVED BY IT PURSUANT TO BINDING COMMITMENTS
ON OR PRIOR TO THE PROJECTED CLOSING DATE (IN EITHER CASE, NET OF TAXES REQUIRED
TO BE PAID OR ACCRUED AS A LIABILITY UNDER GAAP, AS A CONSEQUENCE OF SUCH SALE
OR LEASE, TAKING INTO CONSIDERATION ANY AVAILABLE TAX CREDITS OR DEDUCTIONS);
(J)
BY BIDDER IN THE EVENT THAT THE COMPANY HAS NOT ENTERED INTO: (I) THE SATELLITE
CONSTRUCTION ATP, IN A FORM ACCEPTABLE TO BIDDER IN BIDDER'S SOLE AND ABSOLUTE
DISCRETION, BY MARCH 16, 2010; OR (II) THE SATELLITE CONSTRUCTION AGREEMENT, IN
A FORM ACCEPTABLE TO BIDDER IN BIDDER'S SOLE AND ABSOLUTE DISCRETION, WITHIN 60
DAYS OF THE EXECUTION DATE; AND
(K)
BY THE SELLERS OR THE COMPANY, IF BY 30 DAYS AFTER THE EXECUTION DATE, BIDDER
SHALL HAVE FAILED TO HAVE CAUSED THE MXJV TO DELIVER A JOINDER AGREEMENT
EXECUTED BY THE MXJV; PROVIDED THAT SUCH TERMINATION RIGHT SHALL EXPIRE IF NOT
EXERCISED BY 35 DAYS AFTER THE EXECUTION DATE.
The party seeking to terminate this Agreement pursuant to this Section 8.1
(other than Section 8.1(a)) shall give prompt written notice of such termination
to the other parties.
SECTION 8.2
EFFECT OF
TERMINATION.
(A)
IN THE EVENT THAT THIS AGREEMENT IS TERMINATED PURSUANT TO SECTION 8.1, THIS
AGREEMENT SHALL FORTHWITH BECOME VOID AND THERE SHALL BE NO LIABILITY ON THE
PART OF ANY PARTY EXCEPT (I) TO THE EXTENT THAT ANY PAYMENT OBLIGATION ARISES
UNDER ANY OF
SECTIONS 8.2(B), 8.3(A), 8.3(B), 8.3(E) AND 8.3(F), (II) FOR THE
PROVISIONS OF SECTIONS 3.6 AND 5.7 RELATING TO BROKER'S FEES AND FINDER'S FEES,
SECTION 6.10 RELATING TO CONFIDENTIALITY, SECTION 6.12 RELATING TO PUBLIC
ANNOUNCEMENTS, ARTICLE IX, GENERAL PROVISIONS, AND THIS SECTION 8.2 AND
(III) THAT NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM LIABILITY FOR ANY WILLFUL
BREACH BY SUCH PARTY OF THIS AGREEMENT OR ANY AGREEMENT MADE AS OF THE DATE
HEREOF OR SUBSEQUENT THERETO PURSUANT TO THIS AGREEMENT.
(B)
IN THE EVENT OF A TERMINATION OF THIS AGREEMENT PURSUANT TO
SECTIONS 8.1(B)(II) (DUE TO A WILLFUL BREACH OF A COVENANT BY A SELLER OR THE
COMPANY), 8.1(G), 8.1(H), 8.1(I) OR 8.1(J)(II), THE