47
INSOFAR AS THE ACCURACY OF THE AUDIT OR TESTS EMPLOYED ALLOW FOR SUCH A
DETERMINATION, THERE IS A DEFICIENCY OF ANY AMOUNT WITH RESPECT TO SATMEX 5 OR
OF TWENTY-FIVE PERCENT (25%) OR MORE WITH RESPECT TO SATMEX 6 (A "MAJOR FUEL
DEFICIENCY") IN THE AMOUNT OF PROPELLANT OR BI-PROPELLANT AVAILABLE AS COMPARED
TO THE AMOUNTS SET FORTH IN SCHEDULE 4.15(A) OF THE DISCLOSURE SCHEDULES, AFTER
FIRST DEDUCTING FROM THE LATTER THE AMOUNT OF PROPELLANT OR BI-PROPELLANT FUEL
REQUIRED TO OPERATE THE APPLICABLE COMPANY SATELLITE FROM THE DATE OF
MEASUREMENT SHOWN IN SUCH SCHEDULE TO SUCH LATER DATE AS OF WHICH THE APPROVED
CONSULTANT MAKES ITS DETERMINATION OF THE AVAILABLE PROPELLANT OR BI-PROPELLANT
ON THE APPLICABLE COMPANY SATELLITE.
A DETERMINATION MADE BY AN APPROVED
CONSULTANT IN ACCORDANCE WITH THIS SECTION 6.2(B) SHALL BE BINDING UPON ALL
PARTIES HERETO FOR PURPOSES OF SECTION 8.1(F)(II).
(C)
IN ORDER TO FACILITATE THE
RESOLUTION OF ANY CLAIMS MADE AGAINST OR INCURRED BY EITHER SELLER (AS IT
RELATES TO THE COMPANY AND ITS SUBSIDIARIES), FOR A PERIOD OF FIVE YEARS AFTER
THE CLOSING OR, IF SHORTER, THE APPLICABLE PERIOD SPECIFIED IN THE APPLICABLE
BUYER'S DOCUMENT RETENTION POLICIES, SUCH BUYER SHALL (I) RETAIN THE BOOKS AND
RECORDS RELATING TO THE COMPANY AND ITS SUBSIDIARIES RELATING TO PERIODS PRIOR
TO THE CLOSING AND (II) AFFORD THE REPRESENTATIVES OF EITHER SELLER REASONABLE
ACCESS (INCLUDING THE RIGHT TO MAKE, AT SUCH SELLER'S EXPENSE, PHOTOCOPIES),
DURING NORMAL BUSINESS HOURS, TO SUCH BOOKS AND RECORDS; PROVIDED, HOWEVER, THAT
SUCH BUYER SHALL NOTIFY THE SELLERS IN WRITING AT LEAST 30 DAYS IN ADVANCE OF
DESTROYING ANY SUCH BOOKS AND RECORDS PRIOR TO THE FIFTH ANNIVERSARY OF THE
CLOSING DATE IN ORDER TO PROVIDE THE SELLERS THE OPPORTUNITY TO COPY SUCH BOOKS
AND RECORDS IN ACCORDANCE WITH THIS SECTION 6.2(C).
Section 6.3
Books and RecordsThe Sellers shall prior
to, or reasonably promptly after the Closing, provide to the Buyers all of the
books and records of the Company and its Subsidiaries that are in the possession
of the Sellers or their Representatives; provided, that the Sellers shall be
entitled to retain copies of such books and records delivered to the Buyers
pursuant to this Section 6.3 to the extent required by Law.
***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.
48
SECTION 6.4
FINANCIAL STATEMENTS AND REPORTS; FILINGS (A) WITH
RESPECT TO FINANCIAL STATEMENTS OF THE COMPANY AND ITS SUBSIDIARIES FOR EACH
FISCAL SEMI-ANNUAL PERIOD AND EACH FISCAL YEAR AS ARE FILED IN AN SEC DOCUMENT
BY THE COMPANY AFTER THE DATE OF THIS AGREEMENT BUT BEFORE THE CLOSING DATE, AS
PROMPTLY AS PRACTICABLE UPON THE FILING BY THE COMPANY OF SUCH SEC DOCUMENT
CONTAINING THE SAME (AND, IN THE EVENT THAT THE CLOSING HAS NOT