SUCH FINANCIAL STATEMENTS FAIRLY
PRESENT, IN ALL MATERIAL RESPECTS, THE CONSOLIDATED FINANCIAL CONDITION, RESULTS
OF OPERATIONS AND CASH FLOWS OF BORROWER AS OF THE DATES AND FOR THE PERIODS
SPECIFIED IN ACCORDANCE WITH GAAP.
THE ADMINISTRATIVE AGENT AND THE REQUIRED
LENDERS SHALL HAVE RECEIVED A COPY OF ANY "MANAGEMENT LETTER" RECEIVED BY ANY
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COMPANY ON OR BEFORE THE CLOSING DATE FROM ITS CERTIFIED PUBLIC ACCOUNTANTS AND
THE MANAGEMENT'S RESPONSES THERETO IN CONNECTION WITH SUCH FINANCIAL STATEMENTS.
(U)
THE ARRANGER SHALL HAVE COMPLETED CONFIRMATORY LEGAL,
ENVIRONMENTAL AND REGULATORY DUE DILIGENCE, INCLUDING WITH RESPECT TO THE
COLLATERAL DOCUMENTS, AND SHALL BE SATISFIED WITH THE RESULTS THEREOF.
(V)
THE BANK OF NEW YORK, IN ITS CAPACITY AS COLLATERAL AGENT, SHALL
HAVE EXECUTED AND DELIVERED THIS AGREEMENT.
(W)
THE COLLATERAL AGENT (IN ITS CAPACITY AS BAILEE AND AGENT FOR THE
SECURED PARTIES PURSUANT TO THE COLLATERAL TRUST AGREEMENT) SHALL HAVE A LEGAL,
VALID AND ENFORCEABLE FIRST PRIORITY SECURITY INTEREST IN THE AUCTION RATE
SECURITIES (AND THE PROCEEDS OF ANY ARS CONVERSION) HELD, TRANSFERRED OR
REQUIRED TO BE TRANSFERRED TO JEFFERIES & COMPANY, INC. PURSUANT TO THE DEBT
FINANCING LETTERS, WHICH SECURITY INTEREST SHALL HAVE BEEN PERFECTED BY CONTROL
(AS SUCH TERM IS USED IN ARTICLES 8 AND 9 OF THE UCC) PURSUANT TO ONE OR MORE
CONTROL AGREEMENTS REASONABLY SATISFACTORY TO THE COLLATERAL AGENT AND THE
ADMINISTRATIVE AGENT.
(X)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, FOR FURTHER DELIVERY
TO THE COLLATERAL AGENT IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE
AGENT (I) AMENDMENTS TO ANY UCC FINANCING STATEMENTS DELIVERED IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THE CONVERTIBLE SENIOR NOTE DOCUMENTS, IN
WHICH THE EXACT LEGAL NAME OF THE DEBTOR IS INCORRECT IN ANY RESPECT,
(II) AMENDMENTS TO EACH UCC FINANCING STATEMENT THAT NAMES ICO SATELLITE
SERVICES G.P. (THE OWNER OF THE ICO SATELLITE) AS THE DEBTOR TO AMEND THE
COLLATERAL DESCRIPTION TO SPECIFICALLY REFERENCE THE ICO SATELLITE IN A MANNER
SATISFACTORY TO THE ADMINISTRATIVE AGENT, (III) A TERMINATION STATEMENT TO THE
UCC FINANCING STATEMENT THAT NAMES BORROWER, AS THE DEBTOR, AND THE BANK OF NEW
YORK (AS INDENTURE TRUSTEE), AS THE SECURED PARTY.
Section 4.02
Conditions to All Credit Extensions.
The obligation of
each Lender and each Issuing Bank to make any Credit Extension (including the
initial Credit Extension) shall be subject to, and to the satisfaction of, each
of the conditions precedent set forth below.
(A)
COMPLIANCE WITH DEBT FINANCING LETTERS.
BORROWER SHALL HAVE
COMPLIED IN ALL RESPECTS WITH ITS OBLIGATIONS UNDER THE DEBT FINANCING LETTERS,
INCLUDING CLAUSES (I) AND (II) OF THE SECOND PARAGRAPH OF THE DEBT FINANCING
LETTERS REFERRED TO IN CLAUSE (II) OF THE DEFINITION OF SUCH TERM BUT EXCLUDING
PARAGRAPH 6 OF THE DEBT FINANCING LETTER REFERRED TO IN CLAUSE (II) OF THE
DEFINITION OF SUCH TERM AND OTHER OBLIGATIONS THAT ARISE UNDER THE DEBT
FINANCING LETTERS TO THE EXTENT SUCH OBLIGATIONS RELATE DIRECTLY AND SOLELY TO
SUCH PARAGRAPH 6.
(B)
NOTICE.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A BORROWING
REQUEST AS REQUIRED BY SECTION 2.03