Dated 5 June 2009 (conformed to include amendments as of 29 June 2009, 9 April 2010 and 28 October 2010) COFACE FACILITY AGREEMENT between GLOBALSTAR, INC. as the Borrower, BNP PARIBAS SOCIÉTÉ GÉNÉRALE NATIXIS CRÉDIT AGRICOLE CORPORATE AND INVESTMENT...
Exhibit
10.1
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Dated 5
June 2009
(conformed
to include amendments as of 29 June 2009, 9 April 2010 and 28 October
2010)
between
as the
Borrower,
BNP
PARIBAS
SOCIÉTÉ
GÉNÉRALE
NATIXIS
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK
(FORMERLY
CALYON)
and
CRÉDIT
INDUSTRIEL ET COMMERCIAL
as the
Mandated Lead Arrangers,
BNP
PARIBAS
as the
Security Agent
and the
COFACE Agent
and
THE
BANKS AND FINANCIAL INSTITUTIONS
listed in
Schedule 1
as the
Original Lenders
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TABLE
OF CONTENTS
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Page
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1.
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DEFINITIONS
AND INTERPRETATION
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3
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2.
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THE
FACILITIES
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48
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3.
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PURPOSE
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49
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4.
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CONDITIONS
OF UTILISATION
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51
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5.
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UTILISATION
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53
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6.
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REPAYMENT
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57
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7.
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PREPAYMENT
AND CANCELLATION
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57
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8.
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INTEREST
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65
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9.
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INTEREST
PERIODS
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66
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10.
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CHANGES
TO THE CALCULATION OF INTEREST
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67
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11.
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FEES
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68
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12.
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COFACE
INSURANCE PREMIA
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70
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13.
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TAX
GROSS-UP AND INDEMNITIES
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72
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14.
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INCREASED
COSTS
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75
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15.
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OTHER
INDEMNITIES
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76
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16.
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MITIGATION
BY THE LENDERS
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77
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17.
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COSTS
AND EXPENSES
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78
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18.
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REPRESENTATIONS
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78
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19.
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INFORMATION
UNDERTAKINGS
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91
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20.
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FINANCIAL
COVENANTS
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100
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21.
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POSITIVE
UNDERTAKINGS
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104
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22.
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NEGATIVE
UNDERTAKINGS
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117
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23.
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EVENTS
OF DEFAULT
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128
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24.
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REMEDIES
UPON AN EVENT OF DEFAULT
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135
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25.
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SECURITY
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135
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(i)
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26.
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CHANGES
TO THE LENDERS
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135
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27.
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CHANGES
TO THE BORROWER
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140
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28.
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ROLE
OF THE COFACE AGENT, THE SECURITY AGENT AND THE MANDATED LEAD
ARRANGERS
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140
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29.
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CONDUCT
OF BUSINESS BY THE FINANCE PARTIES
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148
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30.
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SHARING
AMONG THE FINANCE PARTIES
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148
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31.
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PAYMENT
MECHANICS
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150
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32.
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SET-OFF
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154
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33.
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NOTICES
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154
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34.
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CALCULATIONS
AND CERTIFICATES
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156
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35.
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PARTIAL
INVALIDITY
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156
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36.
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REMEDIES
AND WAIVERS
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156
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37.
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AMENDMENTS
AND WAIVERS
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157
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38.
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COUNTERPARTS
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158
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39.
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GOVERNING
LAW
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158
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40.
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ENFORCEMENT
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158
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(ii)
THIS AGREEMENT (the “Agreement”) is originally dated 5
June 2009 (and amended 29 June 2010, 9 April 2010 and 28 October 2010) and
made
BETWEEN:
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(1)
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GLOBALSTAR, INC., a
corporation duly organised and validly existing under the laws of the
State of Delaware, with its principal office located at 000 Xxxxx
Xxxxxxxx Xxxx., Xxxxxxxx, XX 00000, Xxxxxx Xxxxxx of America
(the “Borrower”);
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(2)
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BNP PARIBAS, a société anonyme with a
share capital of two billion four hundred sixty five million five hundred
and twelve thousand seven hundred and fifty eight Euros (€2,465,512,758)
organised and existing under the laws of the Republic of France, whose
registered office is at 00 xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx registered under number 662 042 449 at the
Commercial Registry of Paris, acting in its capacity as facility agent and
Chef de File for
and on behalf of the Finance Parties (the “COFACE
Agent”);
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(3)
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BNP PARIBAS, SOCIETE GENERALE, NATIXIS, CRÉDIT AGRICOLE CORPORATE AND
INVESTMENT BANK (FORMERLY CALYON) and CRÉDIT INDUSTRIEL ET
COMMERCIAL each acting in its capacity as a mandated lead arranger
(the “Mandated
Lead Arrangers”);
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(4)
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BNP PARIBAS, a société anonyme with a
share capital of two billion four hundred sixty five million five hundred
and twelve thousand seven hundred and fifty eight Euros (€2,465,512,758)
organised and existing under the laws of the Republic of France, whose
registered office is at 00 xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx registered under number 662 042 449 at the
Commercial Registry of Paris, acting in its capacity as the security agent
(the “Security
Agent”); and
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(5)
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THE FINANCIAL
INSTITUTIONS listed in Schedule 1 (Lenders and
Commitments) as lenders (the “Original
Lenders”).
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1.
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DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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In this
Agreement:
“Acceptable Bank”
means:
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(a)
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a
bank or financial institution which has a rating for its long-term
unsecured and non credit-enhanced debt obligations of AA- or higher by
S&P or Fitch Ratings Ltd or Aa2 or higher by Xxxxx’x or a comparable
rating from an internationally recognised credit rating
agency;
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(b)
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Union
Bank of California, provided that, it has a
rating for its long-term unsecured and non credit-enhanced debt
obligations of A or higher by S&P or A+ by Fitch Ratings Ltd or a
comparable rating from an internationally recognised credit rating agency;
or
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(c)
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any
other bank or financial institution approved by the COFACE
Agent.
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3
“Acceptable Intercreditor
Agreement” means an intercreditor agreement in form and substance
satisfactory to the COFACE Agent to be entered into by the Borrower or any
Subsidiary (as the case may be), the COFACE Agent and the relevant provider of
Subordinated Indebtedness. Such Acceptable Intercreditor Agreement
shall include, without limitation, the following provisions, whereby the
relevant Subordinated Indebtedness provider shall agree not to:
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(a)
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seek
direct or indirect recovery, payment or repayment of, nor permit direct or
indirect payment or repayment of any of the Subordinated Indebtedness or
other amounts payable by the Borrower or any Subsidiary (as the case may
be) in respect thereof or of any other Subordinated Indebtedness of the
Borrower or any Subsidiary (as the case may be) other than following
satisfaction of the conditions to the making of Shareholder Distributions
in accordance with Clause 22.6 (Limitations on Dividends and
Distributions);
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(b)
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demand,
xxx for or accept from the Borrower or any Subsidiary (as the case may be)
any payment in respect of the Subordinated Indebtedness or take any other
action to enforce its rights or to exercise any remedies in respect of any
Subordinated Indebtedness (whether upon the occurrence or during the
occurrence of an event of default (howsoever described) or otherwise)
unless requested to do so by the COFACE
Agent;
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(c)
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file
or join in any petition to commence any winding-up proceedings or an order
seeking reorganisation or liquidation of the Borrower or any Subsidiary
(as the case may be), or take any other action for the winding-up,
dissolution or administration of the Borrower or any Subsidiary (as the
case may be) or take, or agree to, any other action which could or might
lead to the bankruptcy, insolvency or similar process of the Borrower or
any Subsidiary (as the case may be) unless requested to do so by the
COFACE Agent; and/or
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(d)
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claim,
rank or prove as a creditor of the Borrower or any Subsidiary (as the case
may be) in competition with any Finance
Party.
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“Account Control Agreement”
means each account control agreement substantially in the form agreed between
the Borrower and the Security Agent on the date of this Agreement (or as
otherwise satisfactory to the Security Agent) between a Deposit Account Bank (as
such term is defined in each Account Control Agreement), the Borrower and the
Security Agent.
“Accounts Agreement” means the
accounts agreement dated on or about the date of this Agreement and made between
the Borrower, the COFACE Agent, the Offshore Account Bank, Thermo and the
Security Agent.
“Additional Cost Rate” has the
meaning given to it in Schedule 4 (Mandatory Cost
Formula).
“Adjusted Consolidated EBITDA”
means, for any period, Consolidated EBITDA for such period provided that, for the
purpose of calculating the Consolidated Net Income component of Consolidated
EBITDA, any cash revenue received in that period but not recognised under GAAP
shall be included, plus
(in the case of paragraphs (a), (b) and (c) only, to the extent
deducted in the calculation of Consolidated EBITDA (without
double-counting)):
4
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(a)
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non-cash
stock compensation expenses;
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(b)
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non-cash
asset impairment charges;
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(c)
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one
time non-cash non-recurring expenses;
and
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(d)
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non-capitalised
cash payments, if any, to second generation ground segment vendors made
from earnings counted during the relevant
period,
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but
excluding the proceeds of any Equity Issuance or any Subordinated
Indebtedness.
“Adjusted Consolidated EBITDA
Reconciliation” means, for any period, a reconciliation statement
prepared by the Borrower in a form reasonably acceptable to the COFACE Agent
showing a reconciliation of:
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(a)
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cash
revenue received in that period but not recognised under GAAP, as
determined in accordance with the definition of Adjusted Consolidated
EBITDA; to
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(b)
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revenues
recognised for such period, as determined in accordance with
GAAP.
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“Advance Payment” means an
advance payment:
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(a)
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in
the case of the Launch Services Contract, of five per cent. (5%) of the total
Contract Price payable by the Borrower pursuant to the Launch Services
Contract; and
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(b)
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in
the case of the Satellite Construction Contract, of fifteen per cent. (15%) of the
total Contract Price payable by the Borrower pursuant to the Satellite
Construction Contract.
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“Affiliate” means, in relation
to any person, a Subsidiary of that person or a Holding Company 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 and orders
of courts or Governmental Authorities and all orders and decrees of all courts
and arbitrators.
“Applicable Margin” means in
respect of each Facility:
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(a)
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for
any Interest Period commencing prior to 15 December 2012, two point
zero seven per cent. (2.07%)
per annum;
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(b)
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for
any Interest Period commencing from 15 December 2012 until
14 December 2017, two point twenty five per cent. (2.25%)
per annum; and
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(c)
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for
any Interest Period commencing thereafter, two point forty per cent. (2.40%)
per annum.
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5
“Asset Disposition” means the
disposition of any or all assets (including the Capital Stock of a Subsidiary or
any ownership interest in a joint venture) of any Obligor or any Subsidiary
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:
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(a)
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in
respect of any Capital Lease of any person, the capitalised amount thereof
that would appear on a balance sheet of such person prepared as of such
date in accordance with GAAP; and
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(b)
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in
respect of any Synthetic Lease, the capitalised amount or principal amount
of the remaining lease payments under the relevant lease that would appear
on a balance sheet of such person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capital
Lease.
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“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 person
authorised to sign any document on its behalf to be delivered pursuant to this
Agreement.
“Availability Period” means the
period from and including the date of this Agreement to and including the date
that is the earlier of:
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(a)
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seven
(7) Months after the date of the last Launch;
or
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(b)
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15 November
2011.
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“Available Commitment” means,
in relation to a Facility, a Lender’s Commitment under that Facility minus:
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(a)
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the
amount of its participation in any outstanding Loans under that Facility;
and
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(b)
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in
relation to any proposed Utilisation, the amount of its participation in
any Loans that are due to be made under that Facility on or before the
proposed Utilisation Date.
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“Available Facility” means, in
relation to a Facility, the aggregate for the time being of each Lender’s
Available Commitment in respect of that Facility.
“Borrower Contingent Equity
Account” has the meaning given to such term in the Accounts
Agreement.
“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 on the date of this Agreement (or as otherwise
satisfactory to the Security Agent) between the Borrower, the Offshore Account
Bank and the Security Agent.
6
“Break Costs” means the amount
(if any) by which:
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(a)
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the
interest which a Lender should have received for the period from the date
of receipt of all or any part of its participation in a Loan or Unpaid Sum
to the last day of the current Interest Period in respect of that Loan or
Unpaid Sum, had the principal amount or Unpaid Sum received been paid on
the last day of that Interest
Period;
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exceeds:
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(b)
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the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with
a leading bank in the London interbank market for a period starting on the
Business Day following receipt or recovery and ending on the last day of
the current Interest Period.
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“Business Day” means a day
(other than a Saturday or Sunday) on which banks are open for general 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 its Subsidiaries:
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(a)
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any
asset that should, in accordance with GAAP, be classified and accounted
for as a capital asset on a Consolidated balance sheet of the Borrower and
its Subsidiaries; and
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(b)
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non-capitalised
cash payments attributable to any second generation Satellite Launch and
ground segment vendors.
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“Capital Expenditure Account”
has the meaning given to such term in the Accounts Agreement.
“Capital Expenditures” means
with respect to the Borrower and its Subsidiaries for any period, the aggregate
cost of all Capital Assets acquired by the Borrower and its Subsidiaries 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, as lessee, that
should, in accordance with GAAP, be classified and accounted for as a capital
lease on a Consolidated balance sheet of the Borrower and its
Subsidiaries.
“Capital Stock”
means:
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(a)
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in
the case of a corporation, capital
stock;
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(b)
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in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of capital stock;
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(c)
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in
the case of a partnership, partnership interests (whether general or
limited);
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7
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(d)
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in
the case of a limited liability company, membership interests;
and
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(e)
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any
other interest or participation that confers on a person the right to
receive a share of the profits and losses of, or distributions of assets
of, the issuing person.
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“Cash” means, at any time, cash
denominated in Dollars and the Dollar equivalent of Euros and Canadian Dollars,
in hand or at bank and (in the latter case) credited to an account in the name
of an Obligor with an Acceptable Bank and to which an Obligor is alone (or
together with other Obligors) beneficially entitled and for so long
as:
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(a)
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that
cash is repayable on demand;
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(b)
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repayment
of that cash is not contingent on the prior discharge of any other
indebtedness of any member of the Group or of any other person whatsoever
or on the satisfaction of any other
condition;
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(c)
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there
is no Lien over that cash except for Liens created pursuant to the
Security Documents or any Permitted Lien constituted by a netting or
set-off arrangement entered into by members of the Group in the ordinary
course of their banking arrangements;
and
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(d)
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the
cash is freely and immediately available to be applied in repayment or
prepayment of the Facilities.
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“Cash Contribution
Agreements” means each cash
contribution agreement made between:
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(a)
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the
Launch Services Provider and Thermo;
and
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(b)
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Xxxxxx
and Thermo,
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and, in
each case, entered into prior to Financial Close on terms and conditions
satisfactory to the COFACE Agent.
“Cash Equivalent Investments”
means at any time:
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(a)
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certificates
of deposit maturing within one (1) year after the relevant date
of calculation and issued by an Acceptable
Bank;
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(b)
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any
investment in marketable debt obligations issued or guaranteed by the
government of the United States of America, the United Kingdom,
any member state of the European Economic Area or any Participating Member
State or by an instrumentality or agency of any of them having an
equivalent credit rating, maturing within one (1) year after the
relevant date of calculation and not convertible or exchangeable to any
other security;
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(c)
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commercial
paper not convertible or exchangeable to any other
security:
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(i)
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for
which a recognised trading market
exists;
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8
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(ii)
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issued
by an issuer incorporated in the United States of America, the
United Kingdom, any member state of the European Economic Area or any
Participating Member State;
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(iii)
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which
matures within one (1) year after the relevant date of calculation;
and
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(iv)
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which
has a credit rating of either A-1 or higher by S&P or F1 or higher by
Fitch Ratings Ltd or P-1 or higher by Xxxxx’x, or, if no rating is
available in respect of the commercial paper, the issuer of which has, in
respect of its long-term unsecured and non-credit enhanced debt
obligations, an equivalent rating;
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(d)
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any
investment in money market funds
which:
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(i)
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have
a credit rating of either A-1 or higher by S&P or F1 or higher by
Fitch Ratings Ltd or P-1 or higher by
Xxxxx’x;
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(ii)
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invest
substantially all their assets in securities of the types described in
paragraphs (a) to (c) above;
and
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(iii)
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can
be turned into cash on not more than thirty (30) days’ notice;
or
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(e)
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any
other debt or marketable security approved by the Majority
Lenders,
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in each
case, denominated in Dollars and the Dollar equivalent of Euros and Canadian
Dollars, and to which any Obligor is alone (or together with other Obligors)
beneficially entitled at that time and which is not issued or guaranteed by any
member of the Group or subject to any 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 the US Internal
Revenue Code of 1986, and the rules and regulations thereunder, each as amended
or modified from time to time.
“COFACE” means La Compagnie Française d’Assurance pour
le Commerce Extérieur a French société anonyme with a share
capital of one hundred and seven million sixty five thousand eight hundred and
one Euros and sixty six cents (€107,065,801.66) whose registered office is at La
Défense, 00-00 Xxxxx Xxxxxxxx, 00000, Xxxxxxx, Xxxxxx and registered at the
Registre du Commerce et des
Societés of Nanterre with registered
number 552 069 791.
“COFACE Insurance Policy” means
each credit insurance policy in respect of this Agreement to be issued by COFACE
for the benefit of the Lenders in respect of each Facility and as approved by
the COFACE Agent (on behalf of the Lenders) pursuant to articles L.432-1 to
L.432-4 of the French Code des
Assurances and signed by the COFACE Agent and the Original
Lenders.
9
“COFACE Insurance Premia” means
the premia due to COFACE payable by the Borrower to the COFACE Agent (for the
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 pursuant to the
Security Documents.
“Collateral Agreement” means
the security agreement substantially in the form agreed between the Borrower and
the Security Agent on the date of this Agreement (or as otherwise satisfactory
to the Security Agent) between the Borrower, each Domestic Subsidiary and the
Security Agent.
“Collection Account” has the
meaning given to such term in the Accounts Agreement.
“Commercial Contracts”
means:
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(a)
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the
Launch Services Contract; and
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(b)
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the
Satellite Construction Contract,
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and,
“Commercial Contract”
means either of the foregoing as the context 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 its Subsidiaries
(including, without limitation, the launch and operation of Satellites) as
granted by the FCC (and any other Governmental Authority), and all 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 confidentiality undertaking substantially in the form set out in
Schedule 10 (Form of
Confidentiality Undertaking) or in any other form agreed between the
Borrower and the COFACE Agent.
“Consolidated” means, when used
with reference to financial statements or financial statement items of any
person, such statements or items on a consolidated basis in accordance with
applicable principles of consolidation under GAAP.
“Consolidated EBITDA” means,
for any period, the sum of the following determined on a Consolidated basis,
without duplication, for the Borrower and its Subsidiaries in accordance with
GAAP:
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(a)
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Consolidated
Net Income for such period; plus
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10
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(b)
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the
sum of the following to the extent deducted in determining Consolidated
Net Income:
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(i)
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income
and franchise taxes;
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(ii)
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Consolidated
Interest Expense;
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(iii)
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amortisation,
depreciation and other non-cash charges (except to the extent that such
non-cash charges are reserved for cash charges to be taken in the
future);
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(iv)
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extraordinary
losses (other than from discontinued operations) and any losses on foreign
currency transaction; and
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(v)
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any
Transaction Costs (provided that, in no
event shall the aggregate amount of Transaction Costs relating to the
negotiation of any Permitted Acquisitions or Permitted Joint Venture
Investments which are not consummated added back to net income during any
four (4) consecutive fiscal quarter period exceed one million Dollars
(US$1,000,000)), less
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(c)
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interest
income and any extraordinary gains and any gains on foreign currency
transactions.
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“Consolidated Interest Expense”
means, with respect to the Borrower and its Subsidiaries for any period, the
gross interest expense (including, interest expense attributable to Capital
Leases and all net payment obligations pursuant to Hedging Agreements but
excluding any non-cash interest) of the Borrower and its Subsidiaries, all
determined for such period on a Consolidated basis, without duplication, in
accordance with GAAP.
“Consolidated Net Income”
means, with respect to the Borrower and its Subsidiries, for any period of
determination, the net income (or loss) of the Borrower and its Subsidiaries for
such period, determined on a Consolidated basis in accordance with GAAP, provided that there shall be
excluded (without double counting) from the calculation of income:
|
|
(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 third party, except to the extent
such net income is actually paid in cash to the Borrower or any of its
Subsidiaries by dividend or other distribution during such
period;
|
|
|
(b)
|
the
net income (or loss) of any person accrued prior to the date it becomes a
Subsidiary of such person or is merged into or consolidated with such
person or any of its Subsidiaries or that person’s assets are acquired by
such person or any of its Subsidiaries except to the extent included
pursuant to the foregoing
paragraph (a);
|
|
|
(c)
|
the
net income (if positive) of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary to the Borrower or any of its Subsidiaries of such net income
is not at the time permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute rule or
governmental regulation applicable to such Subsidiary;
and
|
11
|
|
(d)
|
the
proceeds of any Equity Issuances and/or Subordinated
Indebtedness.
|
“Contingent Equity Release
Date” has the meaning given to such term in the Accounts
Agreement.
“Contingent Equity Required
Balance” has the meaning given to such term in the Accounts
Agreement.
“Contract Price” means the
aggregate price to be paid by the Borrower to:
|
|
(a)
|
the
Supplier under and in relation to the Satellite Construction Contract
being an amount (in aggregate) equal to two hundred ninety eight million
nine hundred nineteen thousand nine hundred and five Euros (€298,919,905)
plus two hundred
eighteen million four hundred eighty three thousand two hundred and
seventeen Dollars and eighty two cents (US$218,483,217.82);
and
|
|
|
(b)
|
the
Launch Services Provider under and in relation to the Launch Services
Contract being two hundred and sixteen million Dollars
(US$216,000,000).
|
“Convertible Note Reserve
Account” has the meaning given to such 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 in 2028.
“Covenant Capital Expenditure”
means all Capital Expenditures other than Excluded Capital
Expenditures.
“Current Assets” has the
meaning given to such 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).
“Current Liabilities” has the
meaning given to such term under GAAP but excluding the current portion
of any long-term Financial Indebtedness outstanding on the date of
calculation.
“Debt Issuance” means any
issuance of any Financial Indebtedness for borrowed money by the Borrower or any
of its Subsidiaries. The term “Debt Issuance” shall not
include any Equity Issuance or any Asset Disposition.
“Debt Service” means the
aggregate Dollar amount of principal, interest, and, if any, fees and other sums
required to be paid by the Borrower pursuant to the Finance Documents and
pursuant to all the Borrower’s Financial Indebtedness incurred from time to
time, including all amounts which have become due and payable as at the date of
calculation but which have not been paid on such date for the Relevant
Period.
12
“Debt Service Account” has the
meaning given to such term in the Accounts Agreement.
“Debt Service Coverage Ratio”
means, on any date, the ratio of:
|
|
(a)
|
Adjusted
Consolidated EBITDA (without
double-counting),
|
|
|
(i)
|
plus, any Liquidity (in
an amount exceeding five million Dollars (US$5,000,000)) at the beginning
of any relevant period of calculation plus the cash proceeds
of any Equity Issuance or Subordinated Indebtedness raised during the
relevant period not committed, or required to be applied, for any other
purpose under the Finance Documents but including monies standing to the
credit of the Collection Account which are not required to be applied for
any other purpose;
|
|
|
(ii)
|
less the sum of the
following (without
double-counting);
|
|
|
(A)
|
any
Covenant Capital Expenditure;
|
|
|
(B)
|
any
changes in Working Capital; and
|
|
|
(C)
|
any
cash taxes,
|
to
|
|
(b)
|
Debt
Service,
|
in each
case, during the relevant period of calculation.
“Debt Service Period” has the
meaning given to such term in the Accounts Agreement.
“Debt Service Reserve Account”
has the meaning given to such term in the Accounts Agreement.
“Default” means an Event of
Default or any event or circumstance specified in Clause 23 (Events of Default) which
would (with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default.
“Delegation Agreement” means
each French law delegation agreement substantially in the form agreed between
the Borrower and the Security Agent on the date of this Agreement (or as
otherwise satisfactory to the Security Agent) between the Borrower, the Security
Agent and the Supplier or the Launch Services Provider (as the case may
be).
“Disruption Event” means either
or both of:
|
|
(a)
|
a
material disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in order
for payments to be made in connection with a Facility (or otherwise in
order for the transactions contemplated by the Finance Documents to be
carried out) which disruption is not caused by, and is beyond the control
of, any of the Parties; or
|
13
|
|
(b)
|
the
occurrence of any other event 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 other
Party:
|
|
|
(i)
|
from
performing its payment obligations under the Finance Documents;
or
|
|
|
(ii)
|
from
communicating with other Parties in accordance with the terms of the
Finance Documents,
|
and which
(in either such case) is not caused by, and is beyond the control of, the Party
whose operations are disrupted.
“Dollar” and “US$” means the lawful currency
for the time being of the United States of America.
“Domestic Subsidiary” means any
Subsidiary organised under the laws of any state of the United 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)
|
Xxxxxx.
|
“DSRA Required Balance” means:
|
|
(a)
|
prior
to but excluding the date that is six (6) Months prior to the First
Repayment Date, an amount equal to forty six million seven hundred and
seventy three thousand Dollars
(US$46,773,000);
|
|
|
(b)
|
from
and including the date that is six (6) Months prior to the First Repayment
Date until but excluding the date that is six (6) Months prior to the
third Repayment Date, an amount in aggregate equal
to:
|
|
|
(i)
|
the
principal amount due on the third Repayment Date;
and
|
|
|
(ii)
|
all
interest, fees, costs and expenses due and payable by the Borrower under
the Finance Documents on the next Payment Date, accrued in respect of the
principal amount referred to in paragraph (b)(i) above;
and
|
14
|
|
(c)
|
from
and including the date that is six (6) Months prior to the third Repayment
Date until the Final Maturity Date, an amount in aggregate equal to all
principal, interest, fees, costs and expenses due and payable by the
Borrower under the Finance Documents on the next Payment Date provided that, if LIBOR
exceeds the capped interest rate set out in the Interest Rate Cap
Agreement, the amount of such capped interest rate shall be used for the
purpose of calculating any interest under this paragraph (c) to the extent
such agreement is in full force and
effect.
|
“Earth Station” shall mean any
earth station (gateway) licenced for operation by the FCC or by a Governmental
Authority outside the United States that is owned and operated by the
Borrower or any of its Subsidiaries.
“Eligible Amount”
means:
|
|
(a)
|
in
the case of Facility A, an amount which is equivalent of eighty five per cent. (85%) of
the total cost of the Eligible Goods and Services which is at any time due
and payable under and in accordance with the Satellite Construction
Contract; 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 in France under the Launch Services
Contract.
|
“Eligible Goods and Services”
means:
|
|
(a)
|
goods
made in France and/or services performed in France;
and
|
|
|
(b)
|
goods
and services (including transport and insurance of any nature) originating
from countries other than France and the United States, incorporated
in the items delivered by the Supplier and/or the Launch Services Provider
and which have been sub-contracted by the Supplier and/or the Launch
Services Provider and therefore remaining under its responsibility, and
recognised as being eligible by the French Authorities to be financed by
this Agreement,
|
which are
included in the aggregate Contract Price within an amount of eligibility
of:
|
|
(i)
|
an
amount equal to (in aggregate) two hundred ninety eight million nine
hundred nineteen thousand nine hundred and five Euros (€298,919,905) plus two hundred
eighteen million four hundred eighty three thousand two hundred and
seventeen Dollars and eighty two cents (US$218,483,217.82) under the
Satellite Construction Contract;
and
|
|
|
(ii)
|
twenty
one million six hundred thousand Dollars (US$21,600,000) under the Launch
Services Contract.
|
15
“Employee Benefit Plan” means
any employee benefit plan within the meaning of Section 3(3) of ERISA
which:
|
|
(a)
|
is
maintained or contributed to by any Obligor or any ERISA Affiliate, or to
which any Obligor or ERISA Affiliate has an obligation to contribute;
or
|
|
|
(b)
|
has
at any time within the preceding six (6) years been maintained or
contributed to by any Obligor or any current or former ERISA Affiliate, or
with respect to which any Obligor or any such ERISA Affiliate has had an
obligation to contribute (or is deemed under Section 4069 of ERISA to
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 internal reports
prepared by any person in the ordinary course of trading and not in response to
any third party action or request of any kind) or proceedings relating in any
way to any actual or alleged violation of or liability under any Environmental
Law or relating to any Environmental Permit issued, or any approval given, under
any such Environmental Law, including, any and all claims by Governmental
Authorities for enforcement, clean-up, removal, response, remedial or other
actions or damages, contribution, indemnification cost recovery, penalties,
fines, compensation or injunctive relief resulting from Hazardous Materials or
arising from alleged injury or threat of injury to human health or the
environment.
“Environmental Laws” means any
and all federal, foreign state, 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, and amendments thereto, relating to the protection of
human health or the environment, including, but not limited to, requirements
pertaining to the manufacture, processing, distribution, use, treatment,
storage, disposal, transportation, handling, reporting, licensing, permitting,
emission, release or threatened release, investigation or remediation of
Hazardous Materials. For the purposes of this definition, the term
“Environmental Laws”
shall include but not be limited to:
|
|
(a)
|
the
US Comprehensive Environmental Response, Compensation and Liability Act,
as amended (42 U.S.C. Section 9601, et seq.);
and
|
|
|
(b)
|
the
US Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 6901, et
seq.).
|
“Environmental Permits” means
any permit and other Authorisation and the filing of any notification, report or
assessment under any Environmental Law for the operation of the business of any
member of the Group conducted on or from the properties owned or used by any
member of the Group.
“Equity Cure Contribution”
means cash funds (including any amounts standing to the credit of the Thermo
Contingent Equity Account and/or the Borrower Contingent Equity Account)
contributed to the Borrower by equity and/or Subordinated Indebtedness
(excluding the Initial Equity and any amount of any Equity Issuance or
Subordinated Indebtedness applied in accordance with Clause 5.2(b)(i) to (iii)
(Permitted Withdrawals from
the Collection Account) of the Accounts Agreement).
16
“Equity Issuance” means any
issuance by the Borrower or any Subsidiary to any person of:
|
|
(a)
|
shares
of its Capital Stock;
|
|
|
(b)
|
any
shares of its Capital Stock pursuant to the exercise of options or
warrants; or
|
|
|
(c)
|
any
shares of its Capital Stock pursuant to the conversion of any debt
securities to equity.
|
The term
“Equity Issuance” shall
not include any Asset Disposition, any Debt Issuance or the conversion of the
Convertible Notes.
“Ericsson” means Ericsson
Federal Inc. a Delaware corporation with a place of business at 0000 Xxxxxx
Xxxx Xxxx, Xxxxxx, XX 00000, Xxxxxx Xxxxxx.
“ERISA” means the US Employee
Retirement Income Security Act of 1974, and the rules and regulations
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 employer within the
meaning of Section 414(b), (c), (m) or (o) of the Code 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 for which the notice requirement has not been waived by the
PBGC; or
|
|
|
(b)
|
the
withdrawal of any Obligor or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA;
or
|
|
|
(c)
|
the
termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination, under Section 4041 of ERISA, if such termination would
require material additional contributions in order to be considered a
standard termination within the meaning of Section 4041(b) of ERISA,
or the filing under Section 4041(c) of ERISA of a notice of intent to
terminate any Pension Plan or the termination of any Pension Plan under
Section 4041(c) of ERISA; or
|
|
|
(d)
|
the
institution of proceedings to terminate, or the appointment of a trustee
with respect to, any Pension Plan by the PBGC;
or
|
|
|
(e)
|
any
other event or condition which would reasonably be expected to constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan;
or
|
17
|
|
(f)
|
the
failure to make a required contribution to any Pension Plan that would
reasonably be expected to result in the imposition of a Lien or the
provision of security under Section 412 or 430 of the Code or
Section 302 or 4068 of ERISA, or the arising of such a Lien; there
being or arising any “unpaid minimum required
contribution” or “accumulated funding
deficiency” (as defined or otherwise set forth in Section 4971
of the Code or Part 3 of Subtitle B of Title I of ERISA),
whether or not waived; or the filing of any request for or receipt of a
minimum funding waiver under Section 412 of the Code or
Section 302 of ERISA with respect to any Pension Plan or
Multiemployer Plan, or that such filing may be made; or a determination
that any Pension Plan is, or is expected to be, in at-risk status under
Title IV of ERISA; or
|
|
|
(g)
|
the
partial or complete withdrawal of any Obligor of any ERISA Affiliate from
a Multiemployer Plan if withdrawal liability is asserted by such plan;
or
|
|
|
(h)
|
any
event or condition which results, or is reasonably expected to result, in
the reorganisation or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA;
or
|
|
|
(i)
|
any
event or condition which results, or is reasonably expected to result, in
the termination of a Multiemployer Plan under Section 4041A of ERISA or
the institution by PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA;
or
|
|
|
(j)
|
the
receipt by any Obligor or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from any Obligor or any ERISA Affiliate
of any notice, that a Multiemployer Plan is in endangered or critical
status under Section 305 of
ERISA.
|
“Escrow Account” means the
escrow account with Société Générale pursuant to the escrow agreement made
between the Borrower, the Supplier and Société Générale, S.A. dated
21 December 2006.
“Euro” or “€” means the single currency
of the Participating Member States.
“Event of Default” means any
event or circumstance specified as such in Clause 23 (Events of
Default).
“Excess Cash Flow” means, for
any period of determination, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP:
|
|
(a)
|
Adjusted
Consolidated EBITDA for such
period;
|
minus (to the extent not
already deducted in the calculation of Adjusted Consolidated
EBITDA),
|
|
(b)
|
the
sum of the following (without
double-counting):
|
|
|
(i)
|
cash
taxes and Consolidated Interest Expense paid in cash for such
period;
|
18
|
|
(ii)
|
all
scheduled principal payments made in respect of Financial Indebtedness
during such period;
|
|
|
(iii)
|
all
Covenant Capital Expenditures made during such period (to the extent
funded by earnings counted in the calculation of Adjusted Consolidated
EBITDA);
|
|
|
(iv)
|
any
changes to Working Capital during such
period;
|
|
|
(v)
|
any
amount applied to fund any cash reserve required under the Finance
Documents, including the DSA Required Balance, the DSRA Required Balance
and the CNRA Required Balance in such
period;
|
|
|
(vi)
|
non-scheduled
principal payments with respect to any Loan in such
period;
|
|
|
(vii)
|
the
cash portion of the purchase price and other reasonable
acquisition-related costs paid by the Borrower for Permitted Acquisitions
in such period;
|
|
|
(viii)
|
any
one (1) time non-recurring cash expense;
and
|
|
|
(ix)
|
Transaction
Costs during such period (solely to the extent added back to net income in
the calculation of Adjusted Consolidated
EBITDA).
|
“Excluded Capital Expenditure”
means Capital Expenditures funded:
|
|
(a)
|
with
Net Cash Proceeds received in connection
with:
|
|
|
(i)
|
an
Insurance and Condemnation Event or an Asset Disposition and reinvested in
accordance with Clause 7.5 (Mandatory Prepayment -
Insurance and Condemnation Events);
or
|
|
(ii)
|
an
Equity Issuance; or
|
|
|
(b)
|
by
the issuance of Capital Stock of the Borrower to the seller (or an
affiliate thereof) of the related Capital
Asset.
|
“Existing Canadian Note” means
the three (3) Month libor plus three point fifty per cent. (3.50%) notes
issued by Globalstar Canada Satellite Co. in favour of the
Borrower.
“Facilities”
means:
|
|
(a)
|
Facility
A; and
|
|
|
(b)
|
Facility B,
|
and,
“Facility” means either
of the foregoing as the context requires.
“Facility A” has the meaning
given to such term in Clause 2.1(a) (Facility A and Facility
B).
19
“Facility A Commitment”
means:
|
|
(a)
|
in
relation to an Original Lender, the amount in Dollars set opposite its
name under the heading “Facility A Commitments
US$” in Part A (Facility A) of Schedule
1 (Lenders and
Commitments) and the amount of any other Facility A Commitment
transferred to it under this Agreement;
and
|
|
|
(b)
|
in
relation to any other Lender, the amount of any other Facility A
Commitment transferred to it under this
Agreement,
|
to the
extent not cancelled, reduced or transferred by it under this
Agreement.
“Facility A Loan” means a
loan made or to be made under Facility A or the principal amount
outstanding 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, the amount in Dollars set opposite its
name under the heading “Facility B Commitments
US$” in Part B (Facility B) of Schedule
1 (Lenders and
Commitments) and the amount of any other Facility B Commitment
transferred to it under this Agreement;
and
|
|
|
(b)
|
in
relation to any other Lender, the amount of any other Facility B
Commitment transferred to it under this
Agreement,
|
to the
extent not cancelled, reduced or transferred by it under this
Agreement.
“Facility B Loan” means a
loan made or to be made under Facility B or the principal amount
outstanding for the time being of that loan.
“Facility Office” means the
office or offices notified by a Lender to the COFACE Agent in writing on or
before the date it becomes a Lender (or, following that date, by not less than
five (5) Business Days’ written notice) as the office or offices through
which it will perform its obligations under this Agreement.
“FCC” shall mean the Federal
Communications Commission.
“FDIC” means the Federal
Deposit Insurance Corporation.
“Final Maturity Date” means the
date that is ninety six (96) Months after the First Repayment
Date.
“Final In-Orbit Acceptance”
means the date upon which each of the following has occurred:
|
|
(a)
|
the
twenty-fourth (24th) Satellite
has reached its final altitude;
|
20
|
|
(b)
|
the
testing of the twenty-fourth (24th) Satellite
has been completed and the Borrower has provided to the COFACE Agent a
certificate signed by a Responsible Officer certifying that the Borrower
has delivered to its relevant insurer a confirmation that the Satellite
Performance Criteria has been successfully met in respect of the
twenty-fourth (24th) Satellite
(and attaching a copy of such confirmation to such certificate);
and
|
|
|
(c)
|
each
Satellite has drifted into its final orbital plane
position,
|
as
certified by the Borrower in accordance with Clause 19.9 (Final In-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 as a “Finance Document” by
the COFACE Agent and 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 in Clause 4.1
(Initial Conditions
Precedent) and Clause 4.2 (Further Conditions Precedent)
have been satisfied or waived in accordance with the terms of this
Agreement.
21
“Financial Indebtedness” means,
with respect to the Borrower and its Subsidiaries at any date and without
duplication, the sum of the following calculated in accordance with
GAAP:
|
|
(a)
|
all
liabilities, obligations and indebtedness for borrowed money including,
but not limited to, obligations evidenced by bonds, debentures, notes or
other similar instruments of any such
person;
|
|
|
(b)
|
all
obligations of the Borrower or any of its Subsidiaries to pay the deferred
purchase price of property or services, to the extent classified as debt
in accordance with GAAP (including, without limitation, all obligations
under non-competition, earn-out or similar agreements), except Satellite
Vendor Obligations and trade payables arising in the ordinary course of
trading:
|
|
|
(i)
|
not
more than ninety (90) days past due;
or
|
|
|
(ii)
|
being
duly contested by the Borrower in good
faith;
|
|
|
(c)
|
the
Attributable Indebtedness of the Borrower or any of its Subsidiaries with
respect to the obligations of the Borrower or 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 third party secured by a Lien on any asset
owned or being purchased by the Borrower or any of its Subsidiaries
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by the Borrower or any of its Subsidiaries or is limited in
recourse;
|
|
|
(e)
|
all
Guarantee Obligations of the Borrower or any of its
Subsidiaries;
|
|
|
(f)
|
all
obligations, contingent or otherwise, of the Borrower or any of its
Subsidiaries relative to the face amount of letters of credit, whether or
not drawn, including without limitation, any banker’s acceptances issued
for the account of the Borrower of any of its
Subsidiaries;
|
|
|
(g)
|
all
obligations of the Borrower or any of its Subsidiaries to redeem,
repurchase exchange, defease or otherwise make payments in respect of
Capital Stock of such person; and
|
|
|
(h)
|
all
Net Hedging Obligations.
|
“First Repayment Date” means
the date that is six (6) Months after the earlier of:
|
|
(a)
|
the
date that is two (2) Months after the last Launch;
or
|
|
|
(b)
|
15 June
2011.
|
“Fiscal Year” means the fiscal
year of the Borrower and its Subsidiaries ending on
31 December.
22
“Foreign Investment Limitation”
means, as of any date of determination, an amount equal to the sum
of:
|
|
(a)
|
twenty
five million Dollars (US$25,000,000); less
|
|
|
(b)
|
the
aggregate amount of Financial Indebtedness permitted pursuant to
Clause 22.1(f)(iii) (Limitations on Financial
Indebtedness) outstanding as of such date of determination; less
|
|
|
(c)
|
the
aggregate amount of all investments in Foreign Subsidiaries (valued as of
the initial date of such investment without regard to any subsequent
changes in value thereof) made after the date of this Agreement and prior
to such date of determination pursuant to Clause 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 any subsequent changed in value thereof) in
Foreign Subsidiaries (or any entities that would constitute Foreign
Subsidiaries if the Borrower or one of its Subsidiaries owned more than
fifty per cent. (50%) of
the outstanding Capital Stock of such entity) made after the date of this
Agreement and prior to such date of determination pursuant to
Clause 22.3(c) (Limitations on Loans,
Investments and
Acquisitions),
|
provided that, any investment
of non-cash consideration constituting stock in the Borrower (howsoever
described):
|
|
(i)
|
in
the case of a single transaction, that does not exceed ten million Dollars
(US$10,000,000) in value; and
|
|
|
(ii)
|
which
transactions in aggregate since the date of this Agreement do not exceed
fifty million Dollars (US$50,000,000) in
aggregate,
|
shall be
excluded from the determination of the 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 Politique Economiques (DGTPE)” of the French Ministry of
Finance, any successors thereto, or any other Governmental Authority in or of
France involved in the provision, management or regulation of the terms,
conditions and issuance of export credits including, among others, such entities
to whom authority in respect of the extension or administration of export
financing matters have been delegated, such as COFACE.
“French Security Documents” has
the meaning given to such term at Clause 28.2(a)(i) (Appointment of the Security Agent
(France)).
“GAAP” means generally accepted
accounting principles, as recognised by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board, consistently
applied and maintained on a consistent basis for the Borrower and its
Subsidiaries throughout the period indicated and consistent with the prior
financial practice of the Borrower and its Subsidiaries.
23
“Governmental Approvals” means
all authorisations, consents, approvals, permits, licences and exemptions of,
registrations and filings with, and reports to, all Governmental
Authorities.
“Governmental Authority” means
the government of the United States or any other nation, or of any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
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 to time.
“Group Structure Chart” means
the group structure chart set out in Schedule 23 (Group Structure
Chart).
“Guarantee Agreement”
means:
|
|
(a)
|
the
guarantee agreement dated prior to Financial Close between the Security
Agent and each Subsidiary Guarantor set out in Schedule 26 (Subsidiary Guarantors);
and
|
|
|
(b)
|
each
guarantee agreement (to be in substantially the same form as the guarantee
agreement referred to in paragraph (a) above) to be entered into by a
Subsidiary Guarantor in accordance with Clause 21.5 (Additional Domestic
Subsidiaries).
|
“Guarantee Obligations” means,
with respect to the Borrower and its Subsidiaries, without duplication, any
obligation, contingent or otherwise, of any such person pursuant to which such
person has directly or indirectly guaranteed any Financial Indebtedness of any
other person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of any such
person:
|
|
(a)
|
to
purchase or pay (or advance or supply funds for the purchase or payment
of) such Financial Indebtedness (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets goods,
securities or services to take-or-pay, or to maintain financial statement
condition or otherwise); or
|
|
|
(b)
|
entered
into for the purpose of assuring in any other manner the obligee of such
Financial Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in
part),
|
provided that, the term Guarantee
Obligation shall not include endorsements for collection or deposit in the
ordinary course of trading. The amount of any Guarantee Obligation
shall be deemed equal to the lesser of the stated or determinable amount of the
primary obligation or the maximum liability of the person giving the Guarantee
Obligation.
24
“Hazardous Materials” means any
substances or materials:
|
|
(a)
|
which
are or become defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic
substances under any Environmental
Law;
|
|
|
(b)
|
which
are toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise harmful to human health or the
environment and are or become regulated by any Governmental
Authority;
|
|
|
(c)
|
the
presence of which require investigation or remediation under any
Environmental Law;
|
|
|
(d)
|
the
possession, use, storage, discharge, emission or release of which requires
a permit or licence under any Environmental Law or other
Authorisation;
|
|
|
(e)
|
the
presence of which could be deemed to constitute a nuisance or a trespass
or threatens to pose a health or safety hazard to persons or neighbouring
properties;
|
|
|
(f)
|
which
consist of underground or above ground storage tanks, whether empty,
filled or partially filled with any substance;
or
|
|
|
(g)
|
which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, 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 rate agreement,
commodity swap, forward foreign exchange agreement, currency swap agreement,
cross-currency rate swap agreement, currency option agreement or other agreement
or arrangement designed to alter the risks of any person arising from
fluctuations in interest rates, currency values or commodity prices, all as
amended, restated, supplemented or otherwise modified from time to
time.
“Hedging Obligations” means all
existing or future payment and other obligations owing by the Borrower under any
Hedging Agreement with any person approved by the COFACE Agent.
“Holding Company” means, in
relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
“Xxxxxx” means Xxxxxx Network
Systems LLC a limited liability company organised under the laws of Delaware
with its principal place of business at 11717 Exploration Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, XXX.
“Incapacity” means absence of
the legal right to enter into binding contractual relations (other than pursuant
to a civil or criminal sanction (including without limitation, personal
bankruptcy or analogous proceedings)).
25
“Individual In-Orbit
Acceptance” means the date upon which each of the following has occurred
with respect to each individual Satellite:
|
|
(a)
|
the
relevant Satellite has reached its final
altitude;
|
|
|
(b)
|
the
relevant Satellite is fully operational and properly integrated into the
constellation;
|
|
|
(c)
|
the
testing of the relevant Satellite has been completed and the Borrower has
provided to the COFACE Agent a certificate signed by a Responsible Officer
certifying that the Borrower has delivered to its relevant insurer a
confirmation that the Satellite Performance Criteria has been successfully
met in respect of the relevant Satellite (and attaching a copy of such
confirmation to such certificate);
and
|
|
|
(d)
|
the
relevant Satellite has drifted into its final orbital plane
position,
|
as
certified by the Borrower in accordance with Clause 19.10 (Individual In-Orbit
Acceptance).
“Initial Equity” means the
equity contributed by Thermo (or any other third party) pursuant to paragraph 11
(Equity Contribution)
of Schedule 2 (Conditions
Precedent) or issued to Thermo pursuant to paragraph 10 (Equity/Subordinated Debt) of
Schedule 2 (Conditions
Precedent).
“Insurance and Condemnation
Event” means the receipt by the Borrower or any of its Subsidiaries of
any cash insurance proceeds or condemnation award payable by reason of theft,
loss, physical destruction, damage or similar event with respect to any of their
respective property or assets.
“Insurances” means the
insurances required by Clause 21.4 (Insurance).
“Insurance Consultant” means
Jardine Xxxxx Xxxxxxxx Limited.
“Insurance Proceeds Account”
has the meaning given to such term in the Accounts Agreement.
“Intellectual Property” has the
meaning given to such term at Clause 18.7(a) (Intellectual Property
Matters).
“Interest Period”
means:
|
|
(a)
|
in
relation to a Loan, each period determined in accordance with
Clause 9 (Interest
Periods); and
|
|
|
(b)
|
in
relation to an Unpaid Sum, each period determined in accordance with
Clause 8.3 (Default
Interest).
|
“Interest Rate Cap Agreement”
means each interest rate cap agreement to be entered into by the Borrower and
the Original Lenders which shall (without limitation) provide that monies
payable to the Borrower under such agreements are paid directly to the Debt
Service Account.
26
“Interest Rate Contract” means
any interest rate swap agreement, interest rate cap agreement, interest rate
floor agreement, interest rate collar agreement, interest rate option or other
agreement regarding the hedging of interest rate risk exposure executed in
connection with hedging the interest rate exposure of any person and any
confirming letter executed pursuant to such agreement, all as amended, restated,
supplemented or otherwise modified from time to time.
“Invoice” means any invoice or
demand for payment issued by the Supplier and/or the Launch Services Provider
pursuant to the Satellite Construction Contract and/or Launch Services Contract,
as the case may be.
“Landlord Waiver and Consent
Agreements” means:
|
|
(a)
|
the
landlord waiver and consent agreement made between Four Sierra, LLC as
landlord and the Security Agent;
|
|
|
(b)
|
the
landlord waiver and consent agreement made between Orinda Equity Partners,
LLC as landlord and the Security
Agent;
|
|
|
(c)
|
the
landlord waiver and consent agreement made between Sebring Airport
Authority as landlord and the Security Agent;
and
|
|
|
(d)
|
any
other agreement or document which the Security Agent and the Borrower
(acting reasonably) from time to time designate as a “Landlord Waiver and Consent
Agreement” for the purposes of this
Agreement,
|
and,
“Landlord Waiver and Consent
Agreement” means any of the foregoing, as the context
requires.
“Launch” means the
disconnection of the lift-off plug of the SOYUZ launch vehicle, if such event
follows the ignition of the first (strap-on boosters) and second (core stage)
stage liquid engines of the launch vehicle.
“Launch Failure” has the
meaning given to such term in the Launch Services Contract.
“Launch Insurance” has the
meaning given to such term at Clause 21.4(c)(ii) (Launch
Insurance).
“Launch Insurance
Documentation” has the meaning given to such term at
Clause 21.4(c)(ii) (Launch
Insurance).
“Launch Services Contract”
means the launch services contract dated 5 September 2007 and made between
the Borrower and the Launch Services Provider for the launching into low earth
orbit of the Satellites through four (4) SOYUZ launch vehicles, with
an option for four (4) other similar launches.
“Launch Services Provider”
means Arianespace, a French société anonyme registered at
the Registre du Commerce et
des Société of Evry under registration
number 318 516 457, whose registered office is at Xxxxxxxxx xx
x’Xxxxxx, 00000 Xxxx, Xxxxxx.
27
“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 a Party 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 Dollars for the Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to
four (4) decimal places) as supplied to the COFACE Agent at its
request quoted by the Reference Banks to leading banks in the London
interbank market,
|
as of
11:00 a.m. (London time) on the Quotation Day for the offering of deposits
in Dollars and for a period comparable to the Interest Period for that Loan
provided that, if the
period from the beginning of the Interest Period or from the date of Utilisation
until the end of the Interest Period is:
|
|
(i)
|
a
period shorter than one (1) Month, the reference shall be one (1) Month;
or
|
|
|
(ii)
|
a
period longer than one (1) Month and which does not correspond to an exact
number of Months, the relevant rate shall be determined by using a linear
interpolation of the LIBOR according to usual practice in the
international monetary market.
|
“Licence Subsidiary” shall mean
any single purpose Wholly-Owned Subsidiary of the Borrower or of another
Subsidiary of the Borrower, the sole business and operations of which single
purpose Subsidiary is to hold one (1) or more Communications Licences,
except where it is a mandatory condition of a Communications Licence in the
relevant jurisdiction that any such entity is not such a vehicle (provided that, this exception
shall not apply 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 respect of such
asset. For the purposes of this Agreement, a person shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
“Liquidity” means the sum of
Cash and Cash Equivalent Investments held by any of the Obligors (other than
Thermo), but excluding any amounts held in:
|
|
(a)
|
the
Capital Expenditure Account;
|
28
|
|
(b)
|
the
Borrower Contingent Equity Account;
|
|
|
(c)
|
the
Convertible Note Reserve Account;
|
|
|
(d)
|
the
Debt Service Reserve Account; and
|
|
|
(e)
|
the
Insurance Proceeds Account.
|
“Loans” means:
|
|
(a)
|
a
Facility A Loan; and
|
|
|
(b)
|
a
Facility B Loan,
|
and,
“Loan” means either of
the foregoing as the context requires.
“Loss Payee” has the meaning
given to such term at Clause 21.4(c)(ii)(B) (Launch
Insurance).
“Loss Payee Clause” means a
loss payee clause in substantially the same form as set out in Schedule 28
(Loss Payee
Clause).
“LSP Direct Agreement” means
the direct agreement substantially in the form agreed between the Borrower and
the Security Agent on the date of this Agreement (or as otherwise satisfactory
to the Security Agent) between the Borrower, the Launch Services Provider and
the Security Agent.
“Majority Lenders”
means:
|
|
(a)
|
if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate more than seventy five per cent. (75%) of
the Total Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than seventy five per cent. (75%) of
the Total Commitments immediately prior to the reduction);
or
|
|
|
(b)
|
at
any other time, a Lender or Lenders whose participations in the Loans then
outstanding 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 in accordance with
Schedule 4 (Mandatory Cost
Formula).
“Material Adverse Effect” means with respect to
the Borrower or any of its Subsidiaries, a material adverse effect
on:
|
|
(a)
|
the
properties, business, operations, prospects or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole;
or
|
|
|
(b)
|
the
legality, validity or enforceability of any provision of any Transaction
Document; or
|
29
|
|
(c)
|
the
rights and remedies of any Finance Party under any of the Finance
Documents; or
|
|
|
(d)
|
the
security interests provided under the Security Documents or the value
thereof; or
|
|
|
(e)
|
its
ability to perform any of its obligations under the Finance
Documents,
|
provided that, existing and
future first-generation satellite constellation degradation or failure issues
and the effects thereof (which, for the avoidance of doubt, shall exclude any
Satellite delivered under the Satellite Construction Contract) on the Borrower
and its Subsidiaries, taken individually or collectively, shall not constitute a
Material Adverse Effect.
“Material Communications
Licence” 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 or oral, of the Borrower or any of
its Subsidiaries involving monetary liability of 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 or oral, of the Borrower or any of
its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse
Effect,
|
but
excluding in either case any contract or other agreement that the Borrower or
such Subsidiary may terminate on less than ninety (90) days notice without
material liability.
“Material Subsidiary”
means:
|
|
(a)
|
the
Borrower;
|
|
|
(b)
|
each
Subsidiary Guarantor;
|
|
|
(c)
|
Globalstar
Canada Satellite Co.;
|
|
|
(d)
|
each
Licence Subsidiary (including, GCL Licensee
LLC);
|
|
|
(e)
|
any
Subsidiary of the Borrower which, in the opinion of the COFACE Agent
(acting reasonably), is of material operational or strategic importance to
the business of the Group;
|
|
|
(f)
|
any
Subsidiary of the Borrower which has gross assets (excluding intra group
items) representing ten per cent. (10%) or
more of the gross assets of the Group;
and
|
30
|
|
(g)
|
any
Subsidiary of the Borrower which has gross revenues per annum from all sources
including intra-company revenues which are allocated to such Subsidiary of
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 a Subsidiary of the Borrower will be determined from its
financial statements which were consolidated into the latest relevant
financial statements; and
|
|
|
(B)
|
the
financial condition of the Group will be determined from the latest
relevant financial statements;
|
|
|
(ii)
|
if
a Subsidiary of the Borrower becomes a member of the Group after the date
on which the latest relevant financial statements were
prepared:
|
|
|
(A)
|
the
contribution of the Subsidiary will be determined from its latest
financial statements; and
|
|
|
(B)
|
the
financial condition of the Group will be determined from the latest
relevant financial statements but adjusted to take into account any
subsequent acquisition or disposal of a business or a company (including
that Subsidiary);
|
|
|
(iii)
|
the
contribution of a Subsidiary will, if it has Subsidiaries, be determined
from its consolidated financial
statements;
|
|
|
(iv)
|
if
a Material Subsidiary disposes of all or substantially all of its assets
to another member of the Group, it will immediately 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 immediately become a Material
Subsidiary;
|
|
|
(v)
|
a
Subsidiary of the Borrower (if it is not already a Material Subsidiary)
will become a Material Subsidiary on completion of any other intra-Group
transfer or reorganisation if it would have been a Material Subsidiary had
the intra-Group transfer or reorganisation occurred on the date of the
latest relevant financial statements;
and
|
|
|
(vi)
|
except
as specifically mentioned in paragraph (iv) above, a member of the
Group will remain a Material Subsidiary until the next relevant financial
statements show otherwise under paragraph (i)
above.
|
If there
is a dispute as to whether or not a member of the Group is a Material
Subsidiary, a determination by the COFACE Agent will be, in the absence of
manifest error, conclusive.
“Moody’s” means Xxxxx’x
Investors Service, Inc. and any successor thereto.
31
“Month” means a period starting
on one day in a calendar month and ending on the numerically corresponding 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 shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business
Day;
|
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and
|
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
The above
rules will only apply to the last Month of any period.
“Mortgages” means the
collective reference to each mortgage, deed of trust or other real property
security document, encumbering all real property now or hereafter owned by the
Borrower or any Subsidiary, in each case, in form and substance reasonably
satisfactory to the Security Agent and executed by the Borrower or any
Subsidiary in favour of the Security Agent (for and on behalf of itself and the
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) of ERISA to which any Obligor or any ERISA
Affiliate is making, or is accruing an obligation to make, or has accrued an
obligation to make contributions, and each such plan for the six (6) year
period immediately following the latest date on which any Obligor or ERISA
Affiliate contributed to or had an obligation to contribute to such
plan.
“Net Cash Proceeds” means, as
applicable:
|
|
(a)
|
with
respect to any Equity Issuance, Asset Disposition or Debt Issuance, the
gross cash proceeds received by the Borrower or any of its Subsidiaries
therefrom less
all legal, underwriting, placement agents and other commissions,
discounts, premiums, fees and expenses incurred in connection therewith;
and
|
|
|
(b)
|
with
respect to any Insurance and Condemnation Event, the gross cash proceeds
received by the Borrower or any of its Subsidiaries less the sum
of:
|
|
|
(i)
|
all
fees and expenses in connection therewith;
and
|
|
|
(ii)
|
the
principal amount of, premium, if any, and interest on any Financial
Indebtedness secured by a Lien on the asset (or a portion thereof) subject
to such Insurance and Condemnation Event, which Financial Indebtedness is
expressly permitted under this Agreement and required to be repaid in
connection therewith.
|
32
“Net Debt” means, in respect of
the Group at any time, the consolidated amount of Financial Indebtedness
(excluding any Subordinated Indebtedness) of the Group at that time but deducting the aggregate
amount of Liquidity at that time.
“Net Hedging Obligations”
means, as of any date, the Termination Value of any such Hedging Agreement on
such date.
“Obligations” means, in each
case, whether now in existence or hereafter arising:
|
|
(a)
|
the
principal of and interest on (including interest accruing after the filing
of any bankruptcy or similar petition) the
Loans;
|
|
|
(b)
|
all
Hedging Obligations; and
|
|
|
(c)
|
all
other fees and commissions (including attorneys’ fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrower or any of its Subsidiaries to
the Finance Parties, in each case under any Finance Documents or
otherwise, with respect to any Loan direct or indirect, absolute or
contingent, due or to become due, contractual or tortuous, liquidated or
unliquidated, and whether or not evidenced by any
note.
|
“Obligors” means:
|
|
(a)
|
the
Borrower;
|
|
|
(b)
|
Thermo;
and
|
|
|
(c)
|
each
Subsidiary Guarantor,
|
and,
“Obligor” means any of
the foregoing as the context requires.
“OFAC” means the
U.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 of property (whether
real, personal or mixed) by such person as lessee which is not a Capital
Lease.
“Original Lenders” 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 this
Agreement, has adopted the Euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union,
other than Slovakia, Slovenia, Malta and Cyprus.
33
“Party” means a party to this
Agreement.
“Payment Date” has the meaning
given to such term in the Accounts Agreement.
“PBGC” means the Pension
Benefit Guaranty Corporation or any successor agency.
“Pension Plan” means any
Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the
provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA.
“Permitted Acquisition” means
any investment by the Borrower, any Subsidiary Guarantor or Globalstar Canada
Satellite Co. in the form of acquisition of all or substantially all of the
business or a line of business (whether by the acquisition of Capital Stock,
assets or any combination thereof) of any other person (a “Target Company”) if each such
acquisition meets each of the following requirements:
|
|
(a)
|
no
less than fifteen (15) days prior to the proposed closing date of
such acquisition, the Borrower shall have delivered written notice and
financial details of such acquisition to the COFACE Agent, which notice
shall include the proposed closing date of such
acquisition;
|
|
|
(b)
|
the
Borrower shall have certified on or before the closing date of such
acquisition, in writing and in a form reasonably acceptable to the COFACE
Agent (acting on the instructions of the Majority Lenders), that such
acquisition has been approved by the board of directors or equivalent
governing body of the Target
Company;
|
|
|
(c)
|
the
Target Company shall be in a substantially similar line of business as the
Borrower and its Subsidiaries pursuant to Clause 22.12 (Nature of Business) or
a parallel business the acquisition of which would be of commercial or
strategic importance to such
business;
|
|
|
(d)
|
if
such proposed transaction is a merger with respect to the Borrower or any
Subsidiary Guarantor, the Borrower shall have received the prior written
consent of the COFACE Agent to such
transaction;
|
|
|
(e)
|
such
proposed transaction shall not include or result in any actual or
contingent liabilities that could reasonably be expected to be material to
the business, financial condition, operations or prospects of the Borrower
and its Subsidiaries, taken as a
whole;
|
|
|
(f)
|
if
such proposed transaction is in respect of a Target Company which has
negative Adjusted Consolidated EBITDA, the prior written consent of the
COFACE Agent shall be required
unless:
|
|
|
(i)
|
such
proposed transaction:
|
|
|
(A)
|
is
in respect of a Target Company which is an international gateway operator;
and
|
|
|
(B)
|
the
cash consideration of such transaction does not exceed five million
Dollars (US$5,000,000) in
value,
|
34
provided that, the Borrower
shall only be permitted to enter into two (2) transactions of the type
described in this paragraph (f)(i) in each Fiscal Year; or
|
|
(ii)
|
the
relevant Target Company (other than an international gateway operator) has
for the twelve (12) Month period prior to the date of the proposed
transaction a negative Adjusted Consolidated EBITDA no greater than two
million Dollars (US$2,000,000) in aggregate when taking into account all
other acquisitions with negative Adjusted Consolidated EBITDA made
following the date of this
Agreement.
|
For the
purpose of the calculations required to be made in respect of this
paragraph (f) only:
|
|
(A)
|
any
reference to “the
Borrower and its Subsidiaries” in the definitions of Consolidated
EBITDA, Consolidated Net Income, Equity Issuance, Subordinated
Indebtedness, Capital Interest Expense and Capital Lease (and any other
definition used in the calculation of Adjusted Consolidated EBITDA) shall
be construed as being a reference to “the Target Company and its
Subsidiaries”;
|
|
|
(B)
|
any
reference to “the
Borrower” in the definitions of Consolidated EBITDA, Consolidated
Net Income, Equity Issuance, Subordinated Indebtedness, Capital Interest
Expense and Capital Lease (and any other definition used in the
calculation of Adjusted Consolidated EBITDA) shall be construed as being a
reference to “the Target
Company”; and
|
|
|
(C)
|
any
reference to “Subsidiary” in the
definitions of Consolidated EBITDA, Consolidated Net Income, Equity
Issuance, Subordinated Indebtedness, Capital Interest Expense and Capital
Lease (and any other definition used in the calculation of Adjusted
Consolidated EBITDA) shall be construed as being a reference to a
Subsidiary of a Target Company;
|
|
|
(g)
|
the
Borrower shall have delivered to the COFACE
Agent:
|
|
|
(i)
|
forward
looking financial statements taking into account the proposed transaction
and demonstrating to the satisfaction of the COFACE Agent, compliance with
each of the financial covenants set out in Clause 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 requested by the COFACE Agent;
and
|
|
|
(h)
|
no
Event of Default shall have occurred and be continuing both before and
after giving effect to such
acquisition.
|
35
“Permitted Joint Venture
Investments” means any investment by the Borrower, any Subsidiary
Guarantor or Globalstar Canada Satellite Co. in joint ventures and partnerships
if 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 the consent of the COFACE Agent and the Majority Lenders is
required) or after the closing date (in the case where no consent is
required) of any such investment of more than ten million Dollars
(US$10,000,000), the Borrower shall have delivered written notice of such
investment to the COFACE Agent, which notice shall include the proposed
closing date (or actual closing date, applicable) of such
investment;
|
|
|
(b)
|
such
joint venture or partnership shall be in a substantially similar line of
business as the Borrower and its Subsidiaries pursuant to
Clause 22.12 (Nature of Business) or
a parallel business which is of commercial or strategic importance to such
business;
|
|
|
(c)
|
the
Borrower shall have delivered to the COFACE
Agent:
|
|
|
(i)
|
such
documents reasonably requested by the COFACE Agent or any Finance Party
(through the COFACE Agent) pursuant to Clause 21.5 (Additional Domestic
Subsidiaries) to be delivered at the time required pursuant to
Clause 21.5 (Additional Domestic
Subsidiaries);
|
|
|
(ii)
|
forward
looking financial statements taking into account the proposed transaction
and demonstrating to the satisfaction of the COFACE Agent, compliance with
each of the financial covenants set out in Clause 20 (Financial covenants) on
the proposed closing date of such investment and on a twelve
(12) Month projected basis;
|
|
|
(d)
|
no
Event of Default shall have occurred and be 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 than such investment; and in any
case, such investment shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of the Borrower and
its Subsidiaries, taken as a whole;
and
|
|
|
(f)
|
the
Borrower shall have obtained the prior written consent of the COFACE Agent
and the Majority Lenders prior to the consummation of such investment if
the amount (including all cash and non-cash consideration paid by or on
behalf of the Borrower and its Subsidiaries in connection with such
investment) of such investment (or series of related investments),
together with all other investments in joint ventures and partnerships
consummated during the term of this Agreement, exceeds thirty million
Dollars (US$30,000,000) in aggregate (excluding any portion of such
investment consisting of Capital Stock of the
Borrower).
|
36
“Permitted Liens” means the
Liens permitted pursuant to Clause 22.2(a) to (t) (Limitations on
Liens).
“Phase 3 Costs” means the
aggregate amounts payable or to be paid with respect to the construction, Launch
and Launch Insurance of Phase 3 Satellites (including amounts payable under
the Commercial Contracts arising out of, and in connection with, the
Phase 3 Satellites).
“Phase 3 Satellites” means
the Satellites to be purchased by the Borrower under Phase 3 (as such term
is defined in the Satellite Construction Contract) pursuant to the Satellite
Construction Contract.
“PIK Interest” means interest
paid by the Borrower or any Subsidiary in respect of a debt instrument by the
issuance of additional debt securities only (which debt securities will not
mature or become payable prior to the maturity date of such instrument and no
cash payment is made by the Borrower or any Subsidiary).
“Project” means:
|
|
(a)
|
the
supply of twenty five (25) Satellites plus the long lead items
for six (6) subsequent Satellites by the Supplier pursuant to
the Satellite Construction Contract;
and
|
|
|
(b)
|
the
launching of such Satellites by the Launch Services Provider pursuant to
the terms of the Launch Services
Contract,
|
to form
for the Borrower the second generation 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 accordance with Clause 31.2(c)
(Evidence of Financial
Indebtedness) in substantially (and in all material respects in) the
form as set out in Schedule 25 (Form of Promissory Note) and
any amendments, supplements and modifications thereto, any substitutes therefor,
and any replacements, restatements, renewals or extension thereof, in whole or
in part.
“Property All Risks Insurance”
means the insurance to be procured by the Borrower in accordance with
Clause 21.4(c)(i) (Insurance).
“Protected Party” means a
Finance Party which is or will be subject to any liability, or required to make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
“Qualifying Certificate” means
a certificate from the Supplier and/or the Launch Services Provider (as the case
may be) substantially in the form set out in Schedule 18 (Qualifying Certificate) and
signed by an Authorised Signatory 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);
|
37
|
|
(b)
|
engaged
in a U.S. trade or business with which such interest is “effectively connected”
within the meaning of the Code;
|
|
|
(c)
|
entitled
in respect of payments of interest receivable by it under this Agreement
to the benefit of a double taxation agreement with the United States
which makes provision for full exemption from tax imposed by the
United States on interest; or
|
|
|
(d)
|
entitled
to the benefit of the “portfolio interest”
exemption under Section 871(h) or 881(c) of the
Code.
|
“Quotation Day” means, in
relation to any period for which an interest rate is to be determined, two
(2) Business Days before the first day of that period unless market
practice differs in the London interbank market in which case the Quotation Day
will be determined by the COFACE Agent in accordance with market practice in the
London interbank market (and if quotations would normally be given by leading
banks in the London interbank market 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, Crédit Industriel et
Commercial, Crédit Agricole Corporate and Investment Bank (formerly Calyon) and
Natixis or such other banks as may be appointed by the COFACE Agent in
consultation with the Borrower.
“Relevant Agreements”
means:
|
|
(a)
|
the
Supplier Guarantee; and
|
|
|
(b)
|
each
Cash Contribution Agreement.
|
“Relevant Funds” has the
meaning given to such term at Clause 22.14(a)(iii) (Excess Cash Flow / 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 the tables contained in Clauses 20.3 (Adjusted Consolidated
EBITDA), 20.4 (Debt
Service Coverage Ratio) and 20.5 (Net Debt to 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 at Schedule 29 (Repayment
Schedule).
“Repeating Representations”
means each of the representations set out in Clauses 18.1 (Status), 18.2 (Binding Obligations), 18.3
(Non-Conflict with other
Obligations), 18.4 (Power and Authority), 18.6
(Authorisations), 18.10
(Margin Stock), 18.11
(Government
Regulation), 18.13 (Employee Relations), 18.14
(Burdensome
Provisions), 18.18 (Titles to Properties),
18.23(a) (Satellites),
18.26 (OFAC), 18.27
(Governing Law and
Enforcement), 18.31 (No
Misleading Information) and 18.33 (No
Immunity).
38
“Reservations”
means:
|
|
(a)
|
the
principle that equitable remedies may be granted or refused at the
discretion of a court;
|
|
|
(b)
|
the
limitation of enforcement by laws relating to insolvency, reorganisation
and other laws generally affecting the rights of
creditors;
|
|
|
(c)
|
the
time barring of claims under applicable statutes of
limitation;
|
|
|
(d)
|
the
possibility that an undertaking to assume liability for or indemnify a
person against non-payment of stamp duty may be
void;
|
|
|
(e)
|
defences
of set-off or counterclaim;
|
|
|
(f)
|
a
court construing a Lien expressed to be created by way of fixed security
as being floating security;
|
|
|
(g)
|
any
additional interest imposed pursuant to any relevant agreement may be held
to be irrecoverable on the grounds that it is a
penalty;
|
|
|
(h)
|
an
English court may not give effect to any indemnity for legal costs
incurred by an unsuccessful litigant;
and
|
|
|
(i)
|
equivalent
principles, rights and defences under the laws of any relevant
jurisdiction.
|
“Responsible Officer” means the
chief executive officer, president, chief financial officer, controller,
treasurer or assistant treasurer of an Obligor or any other officer of an
Obligor reasonably acceptable to the COFACE Agent. Any document
delivered under this Agreement that is signed by a Responsible Officer of an
Obligor shall be conclusively presumed to have been authorised by all necessary
corporate, partnership and/or other action on the part of such Obligor and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Obligor.
“Retained Excess Amount” has
the meaning given to such term at Clause 0 (Mandatory Prepayment – Initial
Excess Cash Flow).
“S&P” means Standard &
Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc. and any
successor thereto.
“Sanctioned Entity”
means:
|
|
(a)
|
an
agency of the government of;
|
|
|
(b)
|
an
organisation directly or indirectly controlled by;
or
|
|
|
(c)
|
a
person resident in a country,
|
that is
subject to a sanctions programme identified on the list maintained by OFAC and
available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx,
or as otherwise published from time to time as such programme may be applicable
to such agency, organisation or person.
39
“Sanctioned Person” shall mean
a person named on the list of Specially Designated Nationals or Blocked Persons
maintained by OFAC available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/xxxxx.xxxx, or as otherwise
published from time to time.
“Satellite” shall mean any
single non-geostationary satellite, or group of substantially identical
non-geostationary satellites, delivered or to be delivered by the Supplier to
the Borrower pursuant to the Satellite Construction Contract and owned by,
leased to or for which a contract to purchase has been entered into by, the
Borrower or any of its Subsidiaries, whether such satellite is in the process of
manufacture, has been delivered for Launch or is in orbit (whether or not in
operational service) and including any replacement satellite of the Borrower
following a Launch Failure delivered or to be delivered by:
|
|
(a)
|
the
Supplier to the Borrower pursuant to the Satellite Construction Contract;
or
|
|
|
(b)
|
a
French supplier (other than the Supplier) pursuant to an agreement entered
into by the Borrower with such French supplier which is permitted by the
Finance Documents.
|
“Satellite Construction
Contract” means the satellite construction contract dated
30 November 2006 and made between the Borrower and the Supplier for the
construction of forty eight (48) satellites, as amended and supplemented from
time to time (and as further amended and restated on or about the date hereof
and delivered in satisfaction of the condition precedent set out at paragraph 7
(Commercial Contracts)
of Schedule 2 (Conditions
Precedent)) for the purpose of, among other things, detailing a new
phasing of the contract for the first twenty five (25) satellites
and a final phase of twenty three (23) satellites.
“Satellite Performance
Criteria” means the criteria set out at Schedule 31 (Satellite Performance
Criteria).
“Satellite Vendor Obligations”
means the obligations of the Borrower or any of its Subsidiaries to any
Satellite or Satellite launch vendor or Affiliate thereof for the procurement,
construction, launch and insurance of all or part of one or more Satellites or
Satellite launches for such Satellites or a ground or in orbit space intended
for future use or associated improvements to the ground portion of the network
of the Borrower and its Subsidiaries, provided that such
obligations:
|
|
(a)
|
are
not evidenced by any promissory note;
and
|
|
|
(b)
|
are
not secured by any Lien on any asset or property of the Borrower or any
Subsidiary thereof other than the asset or personal property which is the
subject of such obligation.
|
40
“Scheduled Launch Period” means
the three (3) Month contractual period during which a Satellite is
scheduled to be launched in accordance with the Launch Services
Contract.
“Screen Rate” means the British
Bankers’ Association Interest Settlement Rate for Dollars for the relevant
period displayed on the appropriate page of the Reuters screen. If
the agreed page is replaced or service ceases to be available, the COFACE Agent
may specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
“Security Documents”
means:
|
|
(a)
|
the
Collateral Agreement;
|
|
(b)
|
each
Mortgage;
|
|
|
(c)
|
the
Borrower Pledge of Bank Accounts;
|
|
|
(d)
|
each
Account Control Agreement;
|
|
|
(e)
|
the
Stock Pledge Agreement;
|
|
|
(f)
|
each
Landlord Waiver and Consent
Agreement;
|
|
|
(g)
|
each
Delegation Agreement;
|
|
|
(h)
|
the
Thermo Pledge of Bank Account;
|
|
|
(i)
|
all
other agreements conferring, or purporting to confer, security in favour
of the Finance Parties with respect to the obligations of the Borrower
under the Finance Documents entered into after the date of this Agreement
as required by the terms of this
Agreement;
|
|
|
(j)
|
all
agreements and other documents executed from time to time pursuant to any
of the foregoing; and
|
|
|
(k)
|
any
other agreement or document which the Security Agent and the Borrower
(acting reasonably) from time to time designate as a “Security Document” for
the purposes of this Agreement,
|
and,
“Security Document”
means any of the foregoing as the context requires.
“Shareholder Distributions”
means:
|
|
(a)
|
any
dividend paid, made or declared, other than a dividend paid exclusively in
Capital Stock or rights to acquire Capital Stock which, in each case, no
cash payment is made by the
Borrower;
|
|
|
(b)
|
any
payment by way of return on or repayment of share
capital;
|
41
|
|
(c)
|
any
payment of cash interest or capitalised interest by the Borrower to Thermo
under the Thermo Cash Contribution Agreement or any other distribution
(whether in cash or in kind), including, without limitation, any
distribution of assets or other payment whatsoever in respect of share
capital whether directly or indirectly but excluding any distributions or
other payments pursuant to any employee stock incentive plan (howsoever
described) expressly permitted under the terms of this
Agreement;
|
|
|
(d)
|
any
redemption, cancellation or repurchase of the Borrower’s shares or any
class of its shares other than any conversion on mandatory repurchase or
redemption of the Convertible Notes in accordance with their terms or in
connection with any employee stock incentive plan (howsoever described)
expressly permitted 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, that any such person:
|
|
(a)
|
has
capital sufficient to carry on its business and transactions and all
business and transactions in which it is about to engage and is able to
pay its debts as they mature;
|
|
|
(b)
|
has
assets having a value, both at fair valuation and at present fair saleable
value, greater than the amount required to pay its probable liabilities
(including contingencies); and
|
|
|
(c)
|
does
not believe that it will incur debts or liabilities beyond its ability to
pay such debts or liabilities as they
mature.
|
“Spot Rate of Exchange” means
the exchange rate between Euros and Dollars as notified by the COFACE Agent 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) Business Days prior to the relevant Utilisation Date. If the
agreed page is replaced or the service ceases to be available, the COFACE Agent
may specify another page or service displaying the appropriate
rate.
“Stock Pledge Agreement” means
the stock pledge agreement substantially in the form agreed between the Borrower
and the Security Agent on the date of this Agreement (or as otherwise
satisfactory to the Security Agent) between the Borrower, each Domestic
Subsidiary and the Security Agent.
“Subordinated Indebtedness”
means any Financial Indebtedness of the Borrower or any Subsidiary:
|
|
(a)
|
subordinated
in right and time of payment to the Obligations pursuant to an Acceptable
Intercreditor Agreement (provided that the
Borrower shall be entitled to pay PIK
Interest);
|
|
|
(b)
|
to
be applied by the Borrower or the relevant Subsidiary (as the case may be)
towards:
|
|
|
(i)
|
financing
costs directly arising from the construction and Launch of the Satellites
or additional satellites;
|
42
|
|
(ii)
|
financing
payments due by the Borrower to second generation ground segment vendors;
and/or
|
|
|
(iii)
|
payment
of the Borrower’s working capital and general corporate
purposes;
|
|
|
(c)
|
containing
such other terms and conditions, in each case as are reasonably
satisfactory to the COFACE Agent;
and
|
|
|
(d)
|
the
issuance of such Financial Indebtedness shall not cause, and could not
reasonably be expected to cause, a
Default.
|
“Subordination Deed” means the
subordination deed dated on or about the date of this Agreement and made between
Thermo, the Borrower, the Security Agent and the COFACE Agent.
“Subsidiary” means, as to any
person, of which more than fifty per cent. (50%) of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the board of directors or other managers of such person is at the time owned by
or the management is otherwise controlled by such person (irrespective of
whether, at the time, Capital Stock of any other class or classes of such person
shall have or might have voting power by reason of the occurrence of any
contingency). Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” in this
Agreement shall refer to those of the Borrower.
“Subsidiary Guarantor”
means:
|
|
(a)
|
each
direct or indirect Domestic Subsidiary of the Borrower in existence on the
date of this Agreement and set out in Schedule 26 (Subsidiary Guarantors);
or
|
|
|
(b)
|
which
becomes a party to a Guarantee Agreement pursuant to Clause 21.5
(Additional Domestic
Subsidiaries).
|
“Supplier” means Thales Alenia
Space France, a French société
par actions simplifiée registered at the Registre du Commerce et des Société
of Toulouse under registration number 414 725 101, whose
registered office is at 00, Xxxxxx Xxxx Xxxxxxxx Xxxxxxxxxxx,
00000 Xxxxxxxx, Xxxxxx.
“Supplier Direct Agreement”
means the direct agreement substantially in the form agreed between the Borrower
and the Security Agent on the date of this Agreement (or as otherwise
satisfactory to the Security Agent) between the Borrower, the Supplier and the
Security Agent.
“Supplier Guarantee” means the
guarantee entered into on or about the date of this Agreement and made between
the Supplier as guarantor with the Borrower and the COFACE Agent as beneficiaries,
guaranteeing the 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 sheet loan or
similar off-balance sheet financing product where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an Operating
Lease in accordance with GAAP.
43
“Target Company” has the
meaning given to such term in the definition of “Permitted
Acquisition”.
“Tax” means any tax, levy,
impost, duty, fee, assessment or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to pay
or any delay in paying any of the same).
“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 under a Finance
Document.
“Tax Payment” means either the
increase in a payment made by the Borrower to a Finance Party under
Clause 13.1 (Tax
Gross-up) or a payment under Clause 13.2 (Tax Indemnity).
“Thermo Cash Contribution
Agreement” means the agreement entered into, or to be entered into,
between Thermo and the Borrower delivered in 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) or more Hedging Agreements, after taking into
account the effect of any legally enforceable netting agreement relating to such
Hedging Agreements:
|
|
(a)
|
for
any date on or after such Hedging Agreements have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s); and
|
|
|
(b)
|
for
any date prior to the date referenced in paragraph (a), the amount(s)
determined as the xxxx-to-market value(s) for such Hedging Agreements, as
determined based upon one (1) or more mid-market or other readily
available quotations provided by any recognised dealer in such Hedging
Agreements (which may include a Lender or an Affiliate of a
Lender).
|
“Thermo” means Thermo Funding
Company LLC.
“Thermo Contingent Equity
Account” has the meaning given to such term in the Accounts
Agreement.
“Thermo Group”
means:
|
|
(a)
|
Globalstar
Satellite, L.P.;
|
|
|
(b)
|
Thermo;
and
|
|
|
(c)
|
Globalstar
Holdings, LLC.
|
44
“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
time to time) and made between the Borrower and Thermo.
“Thermo Pledge of Bank
Accounts” means the French law “Convention de Nantissement de
Comptes Bancaires” substantially in the form agreed between Thermo and
the Security Agent on the date of this Agreement (or as otherwise satisfactory
to the Security Agent) between Thermo, the Offshore Account Bank and the
Security Agent.
“Total Commitments” means the
aggregate of:
|
|
(a)
|
the
Total Facility A Commitments;
and
|
|
|
(b)
|
the
Total Facility B Commitments.
|
“Total Facility A
Commitments” means the aggregate of the Facility A Commitments,
being five hundred sixty three million two hundred ninety nine thousand one
hundred and twenty Dollars (US$563,299,120) as at the date of this
Agreement.
“Total Facility B
Commitments” means the aggregate of the Facility B Commitments,
being twenty three million forty two thousand and eight hundred and eighty
Dollars (US$23,042,880) as at the date of this
Agreement.
“Transaction Costs” means all
transaction fees, charges and other amounts related to the Facilities or any
transaction which, if consummated, would be a Permitted Acquisition or a
Permitted Joint Venture Investment (including, without limitation, any financing
fees, merger and acquisition fees, legal fees and expenses, due diligence fees
or any other fees and expenses in connection therewith).
“Transaction Documents”
means:
|
|
(a)
|
each
Finance Document;
|
|
|
(b)
|
each
Commercial Contract;
|
|
|
(c)
|
each
Cash Contribution Agreement;
|
|
|
(d)
|
the
Thermo Cash Contribution Agreement;
|
|
|
(e)
|
any
Acceptable Intercreditor Agreement;
and
|
|
|
(f)
|
each
Material Communications Licence,
|
and,
“Transaction Document”
means any of the foregoing as the context requires.
“Transfer Certificate” means a
certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate)
or any other form agreed between the COFACE Agent and the Borrower (acting
reasonably).
45
“Transfer Date” means, in
relation to a transfer, the later of:
|
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
|
|
(b)
|
the
date on which the COFACE Agent executes the Transfer
Certificate.
|
“UCC” means the Uniform
Commercial Code as in effect in the State of New York, as amended or
modified from time to time.
“Unfunded Pension Liability” of
any Pension Plan means the excess of such Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA over the current value of such Pension
Plan’s assets, determined in accordance with the assumptions used for funding
such Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
“Unpaid Sum” means any sum due
and payable but unpaid by the Borrower under the Finance Documents.
“United States” or “US” means the
United States of America.
“Utilisation” means a
utilisation of a Facility.
“Utilisation Date” means the
date of a Utilisation, being the date on which the relevant Loan is to 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 Value Added Tax Xxx 0000 and any other tax of a similar
nature.
“Wholly-Owned” means, with
respect to a Subsidiary, that all the 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 its Wholly-Owned Subsidiaries (except for
directors’ qualifying shares or other shares required by Applicable Law to be
owned by a person other than the Borrower).
“Withholding Forms” means United States
Internal Revenue Service (“IRS”) Form X-0XXX, X-0XXX or W-9 (or, in each 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 person may claim an exemption from withholding of
U.S. federal income tax on interest payments to that person and, in the
case of a person claiming an exemption under the “portfolio interest
exemption”, a statement certifying that such person is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
“Working Capital” means, on any
date, Current Assets less Current
Liabilities.
46
|
1.2
|
Construction
|
|
|
(a)
|
Unless
a 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
“Security Agent”
shall be construed so as to include its successors in title, permitted
assigns and permitted transferees;
|
|
|
(ii)
|
“assets” includes present
and future properties, revenues and rights of every
description;
|
|
|
(iii)
|
“determines” or “determined” means a
determination made in the absolute discretion of the person making the
determination;
|
|
|
(iv)
|
the
“equivalent” on
any given date in one currency (the “first currency”) of an
amount denominated in another currency (the “second currency”) is a
reference to the amount of the first currency which could be purchased
with the second currency at the Spot Rate of Exchange for the purchase of
the first currency with the second
currency;
|
|
|
(v)
|
a
“Finance Document”
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended, novated,
supplemented, extended or restated;
|
|
|
(vi)
|
“guarantee” means any
guarantee, letter of credit, bond, indemnity or similar assurance against
loss, or any obligation, direct or indirect, actual or contingent, to
purchase or assume any indebtedness of any person or to make an investment
in or loan to any person or to purchase assets of any person where, in
each case, such obligation is assumed in order to maintain or assist the
ability of such person to meet its
indebtedness;
|
|
|
(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 of money, whether present or future, actual or
contingent;
|
|
|
(ix)
|
a
“person” includes
any individual, firm, company, corporation, government, state or agency of
a state or any association, trust, joint venture, consortium or
partnership (whether or not having separate legal
personality);
|
|
|
(x)
|
a
“regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
47
|
|
(xi)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
|
(xii)
|
a
time of day is a reference to Paris
time.
|
|
|
(b)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
|
(c)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
|
(d)
|
A
Default (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.
|
|
1.3
|
Accounting
Terms
|
All
accounting terms not specifically or completely defined in this Agreement shall
be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the audited financial statements required by
Clause 19.2 (Annual
Financial Statements), except as otherwise specifically prescribed in
this Agreement.
|
1.4
|
UCC
Terms
|
Terms
defined in the UCC in effect on the date of this Agreement and not otherwise
defined in this Agreement shall, unless the context otherwise indicates, have
the meanings provided by those definitions. Subject to the foregoing,
the term “UCC” refers,
as of any date of determination, to the UCC then in effect.
|
1.5
|
Third Party
Rights
|
|
|
(a)
|
Unless
expressly provided to the contrary in a Finance Document a person who is
not a Party has no right under the Contracts (Rights of Third Parties)
Xxx 0000 (the “Third
Parties Act”) to enforce or to enjoy the benefit of any term of
this Agreement.
|
|
|
(b)
|
Notwithstanding
any term of any Finance Document the consent of any person who is not a
Party is not required to rescind or vary this Agreement at any
time.
|
|
2.
|
THE
FACILITIES
|
|
2.1
|
Facility A and Facility
B
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrower
a:
|
|
(a)
|
Dollar
term loan facility in an aggregate amount equal to the Total
Facility A Commitments (“Facility A”);
and
|
48
|
|
(b)
|
Dollar
term loan facility in an aggregate amount equal to the Total
Facility B Commitments (“Facility
B”).
|
|
2.2
|
Finance Parties’ Rights and
Obligations
|
|
|
(a)
|
The
obligations of each Finance Party (other than the Lenders) under the
Finance Documents are several. Failure by a Finance Party
(other than a Lender) to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the
Finance Documents. No Finance Party (other than a Lender) is
responsible for the obligations of any other Finance Party (other than a
Lender) under the Finance
Documents.
|
|
|
(b)
|
The
obligations of each Lender under the Finance Documents are joint and
several. Each Party agrees that this Clause 2.2(b) is for
the benefit of the Lenders only and the Borrower acknowledges that it has
no rights of any kind whatsoever under this
Clause 2.2(b).
|
|
|
(c)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.
|
|
|
(d)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
|
2.3
|
Commercial
Contracts
|
Each
Party acknowledges that the Finance Parties shall have no responsibility or
liability whatsoever regarding any performance or non-performance by any party
to a Commercial Contract and that the Finance Parties shall have no obligation
to intervene in any dispute in connection with or arising out of such
performance or non-performance. Any such dispute shall not affect the
Borrower’s performance under this Agreement nor entitle the Borrower to any
suspension or other claim towards the Finance Parties.
|
3.
|
PURPOSE
|
|
3.1
|
Purpose – Facility
A
|
The
Borrower shall apply all amounts borrowed by it under Facility A
towards:
|
|
(a)
|
Payments to the
Supplier
|
payment
to the Supplier of the Eligible Amounts in excess of such amounts already paid
by the Borrower to the Supplier. Such Eligible Amount shall be
payable by way of direct disbursement to the Supplier in accordance with the
terms of the Satellite Construction Contract;
49
|
|
(b)
|
Reimbursement to the
Borrower
|
reimbursement
to the Borrower of the Eligible Amounts already paid directly by the Borrower to
the Supplier in excess of the Advance Payment. Such Eligible Amounts
shall be payable by way of 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 be applied by the
Borrower as follows:
|
|
(i)
|
towards
payment to the Launch Services Provider of amounts not funded by
Facility B in an amount not exceeding two hundred and sixteen million
Dollars (US$216,000,000);
|
|
|
(ii)
|
towards
payment to Xxxxxx in an amount not exceeding eighty seven million Dollars
(US$87,000,000);
|
|
|
(iii)
|
towards
payment to Ericsson in an amount not exceeding eight million Dollars
(US$8,000,000); and
|
|
|
(iv)
|
towards
payment of the Borrower’s working capital and general corporate purposes
in an amount not exceeding one hundred and fifty million Dollars
(US$150,000,000),
|
and, in
each case, such additional amounts as COFACE may agree; and
|
|
(c)
|
Payment of the COFACE Insurance
Premia
|
payment
to the COFACE Agent (for the account of COFACE) of an amount equal to one
hundred per cent.
(100%) of the COFACE Insurance Premia with respect to Facility A, being
the amount specified by COFACE,
in each
case, in accordance with the terms of this Agreement.
|
3.2
|
Purpose – Facility
B
|
The
Borrower shall apply all amounts borrowed by it under Facility B
towards:
|
|
(a)
|
Payments to the Launch Services
Provider
|
payment
to the Launch Services Provider of the Eligible Amounts. Such
Eligible Amount shall be payable by way of direct disbursement to the Launch
Services Provider in accordance with the terms of the Launch Service Contract;
and
|
|
(b)
|
Payment of the COFACE Insurance
Premia
|
payment
to the COFACE Agent (for the account of COFACE) of an amount equal to one
hundred per cent.
(100%) of the COFACE Insurance Premia with respect to Facility B, being
the amount specified by COFACE,
in each
case, in accordance with the terms of this Agreement.
|
3.3
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
50
|
3.4
|
Sub-Limits
|
The
aggregate amount that the Borrower may utilise under:
|
|
(a)
|
Clause 3.1(a)
(Payments to the
Supplier) and Clause 3.1(b) (Reimbursement to the
Borrower) shall not exceed five hundred twenty eight million twenty
six thousand eight hundred and forty four Dollars
(US$528,026,844);
|
|
|
(b)
|
Clause 3.1(b)
(Reimbursement to the
Borrower) shall not exceed three hundred nine million five hundred
forty three thousand six hundred and twenty six Dollars (US$309,543,626);
and
|
|
|
(c)
|
Clause 3.2(a)
(Payments to the Launch
Services Provider) shall not exceed twenty one million six hundred
thousand Dollars (US$21,600,000).
|
|
4.
|
CONDITIONS
OF UTILISATION
|
|
4.1
|
Initial Conditions
Precedent
|
The
Borrower shall not deliver a Utilisation Request unless the COFACE Agent has
received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form
and substance satisfactory to the COFACE Agent. The COFACE Agent
shall notify the Borrower and the Lenders promptly upon being so
satisfied.
|
4.2
|
Further Conditions
Precedent
|
The
Lenders will only be obliged to comply with Clause 5.6 (Lenders’ Participation) if on
the date of the Utilisation Request and on the proposed Utilisation
Date:
|
|
(a)
|
no
Default is continuing or would be likely to result from the proposed
Loan;
|
|
|
(b)
|
the
Repeating Representations to be made by the Borrower are true in all
material respects;
|
|
|
(c)
|
the
credit insurance cover under the COFACE Insurance Policy extended by
COFACE in favour of the Lenders in respect of each Facility is in full
force and effect and has not been suspended or cancelled, and the COFACE
Agent shall, in its sole discretion, be satisfied that all conditions of
the COFACE Insurance Policy and of the credit insurance cover with respect
to such COFACE Insurance Policy have been satisfied in full and that the
credit insurance coverage will apply to such
Utilisation;
|
|
|
(d)
|
each
Commercial 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 other legal proceedings have been initiated between the
Borrower and the Supplier and/or Launch Services Provider (as the case may
be) in respect of a Commercial
Contract;
|
|
|
(e)
|
for
any Utilisation Request made for the purpose referred to in
Clause 3.1(b) (Reimbursement to the
Borrower), the COFACE Agent shall have received evidence that the
payment to the Supplier of the corresponding Invoices has been
made;
|
51
|
|
(f)
|
each
of the documents, information and other evidence specified in and required
to be enclosed with each Utilisation Request and Qualifying Certificate,
together with 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 substance satisfactory to the COFACE
Agent);
|
|
|
(g)
|
the
Borrower shall have paid or arranged for payment when
due:
|
|
|
(i)
|
all
fees, costs, expenses, charges and other amounts due and payable by it
under this Agreement on the Utilisation Date for such Utilisation;
and
|
|
|
(ii)
|
any
and all other amounts due and payable under this Agreement on such
Utilisation Date; the Borrower shall have delivered to the COFACE Agent
such evidence of payment as the COFACE Agent may reasonably request;
and
|
|
|
(h)
|
in
respect of any payment to the Supplier, the Launch Services Provider
and/or the Borrower in accordance with Clause 3.1(a) (Payments to the
Supplier), 3.1(b) (Reimbursement to the
Borrower) and 3.2(a) (Payments to the Launch
Services Provider), the Supplier and/or the Launch Services
Provider (as the case may be) has delivered to the COFACE Agent a
Qualifying Certificate, which:
|
|
|
(i)
|
conforms
to the amount and payment timing specified in the relevant Utilisation
Request; and
|
|
|
(ii)
|
to
the extent applicable, specifies whether such Loan is to be applied in
payment:
|
|
|
(A)
|
of
a portion of the Contract Price directly to the Supplier or the Launch
Services Provider (as the case may be);
or
|
|
|
(B)
|
by
reimbursement to the Borrower to the account directed by the Borrower in
the Utilisation Request of any portion of the Contract Price paid by the
Borrower to the Supplier or the Launch Services Provider (as the case may
be);
|
|
|
(i)
|
a
certificate from a Responsible Officer certifying that each of the
eight (8) Satellites referred to in Schedule 16 (Satellites) has been
launched, is in-service and is fully operational (in form and substance
satisfactory to the COFACE Agent);
and
|
|
|
(j)
|
the
conditions in Clause 5 (Utilisation) have been
fulfilled.
|
The
COFACE Agent shall notify the Borrower and the Lenders promptly upon being so
satisfied.
52
|
4.3
|
Conditions Precedent to Certain
Utilisations
|
The
Lenders will only be obliged to comply with Clause 5.6 (Lenders’ Participation) if on
the date of the Utilisation Request and on the proposed Utilisation
Date:
|
|
(a)
|
no
later than one hundred and twenty (120) days prior to the first day
of the Scheduled Launch Period, the COFACE Agent shall have received the
drafts of the Launch Insurance Documentation, in compliance with the
provisions of Clause 21.4 (Insurance) and in form
and substance satisfactory to the COFACE Agent;
and
|
|
|
(b)
|
no
later than ninety (90) days prior to each scheduled Launch date, the
Borrower shall have delivered to the COFACE Agent the Launch Insurance
Documentation duly executed by each party thereto together
with:
|
|
|
(i)
|
the
Loss Payee Clause;
|
|
|
(ii)
|
each
certificate in respect of the Launch Insurance Documentation referred to
in Clause 21.4(c)(ii) (Launch Insurance);
and
|
|
|
(iii)
|
evidence
that all premia due at that time has been paid in full in compliance with
Clause 21.4(c)(ii) (Launch Insurance) and
in form and substance satisfactory to the COFACE
Agent.
|
|
4.4
|
Failure to Satisfy Conditions
Precedent
|
|
|
(a)
|
The
Borrower agrees that all the initial conditions precedent referred to in
Clause 4.1 (Initial
Conditions Precedent) must be fulfilled within sixty (60) days
of the date of this Agreement.
|
|
|
(b)
|
Subject
to paragraph (c) below, if the Borrower is unable to fulfil any such
conditions precedent within such sixty (60) day time period, each
Lender’s Commitment shall be immediately cancelled and each Lender shall
have no further obligations under this
Agreement.
|
|
|
(c)
|
Each
Lender’s Commitment shall not be cancelled pursuant to paragraph (b)
above if each of the initial conditions precedent has been satisfied by
the Borrower except for the condition precedent referred to in
paragraph 8 (COFACE
Insurance Policy) of Schedule 2 (Conditions Precedent)
but only to the extent that the COFACE Insurance Policy has not been
issued by COFACE for a reason not attributable to a breach by the Borrower
of the terms of the COFACE Insurance
Policy.
|
|
5.
|
UTILISATION
|
|
5.1
|
Delivery of a Utilisation
Request
|
|
|
(a)
|
The
Borrower may utilise a Facility by delivery to the COFACE Agent of a duly
completed Utilisation Request not later than 11:00 a.m. (Paris
time) ten (10) Business Days prior to the proposed Utilisation
Date.
|
53
|
|
(b)
|
Each
Utilisation Request shall instruct the COFACE Agent to remit the amount
utilised on behalf of the Borrower
to:
|
|
|
(i)
|
the
Supplier and/or the Launch Services Provider’s account, as the case may
be, as part of the payment of the relevant Contract Price;
or
|
|
|
(ii)
|
in
relation to a reimbursement to the Borrower under Facility A, such account
as directed by the Borrower in the Utilisation
Request.
|
|
5.2
|
Borrower’s
Mandate
|
|
|
(a)
|
The
Borrower irrevocably authorises and mandates the COFACE Agent (on its
behalf and for its account):
|
|
|
(i)
|
in
the case of Facility A:
|
|
|
(A)
|
to
pay the Supplier with respect to any Eligible Amount under the Satellite
Construction Contract, upon presentation of the documents set out in
Schedule 11 (Payment
Terms);
|
|
|
(B)
|
to
reimburse the Borrower for any payments in respect of Eligible Goods and
Services under the Satellite Construction Contract which exceed fifteen
per cent.
(15%) of the Satellite Construction Contract’s Contract Price;
and
|
|
|
(C)
|
to
pay to the COFACE Agent the COFACE Insurance
Premia;
|
|
|
(ii)
|
in
the case of Facility B:
|
|
|
(A)
|
to
pay the Launch Services Provider with respect to any Eligible Amount under
the Launch Services Contract, upon presentation of the documents set out
in Schedule 11 (Payment
Terms); and
|
|
|
(B)
|
to
pay to the COFACE Agent the COFACE Insurance
Premia.
|
|
|
(b)
|
This
mandate is irrevocable.
|
|
|
(c)
|
The
payment terms set out in Schedule 11 (Payment Terms) may only
be amended with the prior written consent of the COFACE Agent (acting on
the instructions of all the
Lenders).
|
|
|
(d)
|
The
Borrower agrees that any Utilisation made under or pursuant to this
Clause 5 shall be deemed to have been made to or for the benefit of
the Borrower and the Borrower waives all rights of protest it may have to
the contrary.
|
|
5.3
|
Examination of
Documents
|
|
|
(a)
|
The
COFACE Agent’s role in examining the documents set out in Schedule 11
(Payment Terms)
shall be limited to verifying that such documents appear on their face to
be what is indicated in such Schedule 11 (Payment Terms) and the
COFACE Agent shall bear no other responsibility in connection
thereof. Such role shall be construed in accordance with the
terms of Article 14 of the Uniform Customs and Practice for
Documentary Credits of the International Chamber of Commerce 2007 Revision
(Publication 600).
|
54
|
|
(b)
|
The
COFACE Agent and the Lenders shall not be responsible for any delay in
making available any Loans resulting from any requirement for the delivery
of further information or documents required by the COFACE Agent to
confirm the relevant conditions precedent in this Agreement have been
met.
|
|
5.4
|
Completion of a Utilisation
Request
|
|
|
(a)
|
Each
Utilisation Request is irrevocable and will not be regarded as having been
duly completed unless:
|
|
|
(i)
|
the
proposed Utilisation Date is a Business Day within the Availability Period
applicable to that Facility; and
|
|
|
(ii)
|
the
currency and amount of the Utilisation comply with Clause 5.5 (Currency and
Amount).
|
|
|
(b)
|
Only
one (1) Loan may be requested in each Utilisation
Request.
|
|
|
(c)
|
The
Borrower may only deliver one (1) Utilisation Request in each Month
in respect of each Facility.
|
|
5.5
|
Currency and
Amount
|
In the
case of:
|
|
(a)
|
Payments to the
Supplier
|
any
Utilisation to be made in accordance with Clause 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 COFACE Agent shall be made in
Dollars;
|
|
(b)
|
Payments to the Launch Services
Provider
|
any
Utilisation to be made in accordance with Clause 3.2(a) (Payments to the Launch Services
Provider), the Loan requested in a Utilisation Request must be
Dollars. Each payment to the Launch Services Provider by the COFACE
Agent shall be made in Dollars;
|
|
(c)
|
Reimbursement to the
Borrower
|
any
Utilisation to be made in accordance with Clause 3.1(b) (Reimbursement to the
Borrower), the Loan requested in a Utilisation Request must be
Dollars. The Borrower shall confirm in each such Utilisation Request
that the requested Dollar amount is the Dollar equivalent of the relevant Euro
amount applying a Euro to Dollar exchange rate of 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 be made in Dollars;
55
|
|
(d)
|
Facility A – Payment of
the COFACE Insurance Premia
|
any
Utilisation to be made in accordance with Clause 3.1(c) (Payment of the COFACE Insurance
Premia), the Loan requested in a Utilisation Request must be, subject to
Clause 12.3 (Borrower’s
Payment Obligations), thirty five million two hundred seventy two
thousand two hundred and seventy six Dollars (US$35,272,276). Any payment to
COFACE of the COFACE Insurance Premia shall be made in Dollars;
|
|
(e)
|
Facility B – Payment of
the COFACE Insurance Premia:
|
any
Utilisation to be made in accordance with Clause 3.2(b) (Payment of the COFACE Insurance
Premia), the Loan requested in a Utilisation Request must be, subject to
Clause 12.3(c) (Borrower’s Payment
Obligations), one million four hundred forty two thousand eight hundred
and eighty thousand Dollars (US$1,442,880). Any payment to COFACE of
the COFACE Insurance Premia shall be made in Dollars;
|
|
(f)
|
Facility A – Minimum
Amount
|
Facility
A, the amount of the proposed Loan must be an amount which is not more than the
Available Facility and which is a minimum of one million Dollars (US$1,000,000)
or, if less, the Available Facility; and
|
|
(g)
|
Facility B – Minimum
Amount
|
Facility
B, the amount of the proposed Loan must be an amount which is not more than the
Available Facility and which is a minimum of one million Dollars (US$1,000,000)
or, if less, the Available Facility.
|
5.6
|
Lenders’
Participation
|
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date
through its Facility Office.
|
|
|
(b)
|
The
amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
|
|
(c)
|
The
COFACE Agent shall notify each Lender of the amount of each Loan and the
amount of its participation in that Loan by 11:00 a.m. (Paris time) on a
Business Day which is seven (7) Business Days
prior to the proposed Utilisation Date for such
Utilisation.
|
|
5.7
|
Cancellation of
Commitment
|
The Total
Commitments which, at that time, are unutilised shall be immediately cancelled
at the end of the Availability Period.
56
|
6.
|
REPAYMENT
|
|
6.1
|
Repayment
|
|
|
(a)
|
The
Borrower shall make such repayments as may be necessary 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 product
of the aggregate amount of the Loans as at the close of business in Paris
on the last day of the Availability Period and the percentage (as set out
next to the relevant Repayment Date) in the Repayment Schedule which
corresponds to such Repayment Date. Notwithstanding anything to
the contrary in Clause 6.1(b) below, all outstanding Loans will in any
event be repaid in full by the Borrower by the Final Maturity
Date.
|
|
|
(b)
|
If
a Launch Failure occurs or there is a failure to bring a Satellite into
full service and the Borrower elects to order a replacement Satellite in
accordance with 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 the Borrower consent to an adjustment to the repayment
profile of the Facilities.
|
|
6.2
|
Reborrowing
|
The
Borrower may not reborrow any part of a Facility which is repaid.
|
7.
|
PREPAYMENT
AND CANCELLATION
|
|
7.1
|
Illegality
|
If it
becomes unlawful in any applicable jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan:
|
|
(a)
|
that
Lender shall promptly notify the COFACE Agent upon becoming aware of that
event;
|
|
|
(b)
|
upon
the COFACE Agent notifying the Borrower, the Commitment of that Lender
will be immediately cancelled; and
|
|
|
(c)
|
the
Borrower shall repay that Lender’s participation in the Loans made to the
Borrower on the last day of the Interest Period for each Loan occurring
after the COFACE Agent has notified the Borrower or, if earlier, the date
specified by the Lender in the notice delivered to the COFACE Agent (being
no earlier than the last day of any applicable grace period permitted by
law).
|
|
7.2
|
Mandatory Prepayment -
Exit
|
|
|
(a)
|
For
the purposes of this
Clause 7.2:
|
“Acting in Concert” means
acting together pursuant to an agreement or understanding (formal or
informal).
57
“Borrower Change of Control”
means:
|
|
(i)
|
the
Thermo Group shall at any time and for any reason fail to own and control
(without being subject to a voting trust, voting agreement, shareholders
agreement or any other agreement limiting or affecting the voting of such
stock other than any agreement entered into among the members of Thermo
Group and their Affiliates which agreement is not otherwise inconsistent
with this Agreement), 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 instruments, warrants or options then
outstanding have been exercised);
or
|
|
|
(ii)
|
any
“person” (other
than the Thermo Group) together with its Affiliates owns or acquires
(together with all stock that such person or Affiliate has the right to
acquire whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of twenty 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 then
outstanding have been exercised);
or
|
|
|
(iii)
|
any
“person” or
“group” (as such
terms are used in Sections 13(d) and 14(d) of the US Securities
Exchange Act of 1934 (the “Exchange Act”)) Acting
in Concert or otherwise (other than Thermo Group), is or shall become the
“beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act, except that a person shall be deemed to have beneficial
ownership of all stock that such person has the right to acquire whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of thirty three per cent. (33%) or
more of the economic or voting interests in the Borrower’s Capital Stock
(assuming that all convertible instruments, warrants or options then
outstanding have been exercised);
or
|
|
|
(iv)
|
the
board of directors of the Borrower shall cease to consist of a majority of
Continuing 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) on the
date of this Agreement and each other director if such director’s nomination for
election to the board of directors of the Borrower and/or Thermo Group (as the
case may be) is recommended by a majority of the then Continuing
Directors.
58
“Thermo Change of Control”
means:
|
|
(i)
|
Xxxxx
Xxxxxx III (or, in the event of his death or Incapacity, his
executors, trustees, heirs or legal representatives) shall at any time and
for any reason fail to own and control (without being subject to a voting
trust, voting agreement, shareholders agreement or any other agreement
limiting or affecting the voting of such stock), free and clear of any
Lien, at least forty per cent. (40%) of
both the economic and voting interests in any member of the Thermo Group’s
Capital Stock (assuming that all convertible instruments, warrants or
options then outstanding have been exercised);
or
|
|
|
(ii)
|
any
“person” or
“group” (as such
terms are used in Sections 13(d) and 14(d) of the US Securities
Exchange Act of 1934 (the “Exchange Act”)), Acting
in Concert or otherwise, is or shall become the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, except
that a person shall be deemed to have beneficial ownership of all stock
that such person has the right to acquire whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of twenty five per cent. (25%) or
more of the economic or voting interests in any member of the Thermo
Group’s Capital Stock (assuming that all convertible instruments, warrants
or options then outstanding have been exercised);
or
|
|
|
(iii)
|
the
board of directors (or its equivalent) of any member of the Thermo Group
shall cease to consist of a majority of Continuing Directors;
or
|
|
|
(iv)
|
Xxxxx
Xxxxxx III (or, in the event of his death or Incapacity, his
executors, trustees, heirs or legal representatives) shall cease to have
the power to elect or remove a majority of the board of directors (or its
equivalent) of any member of the Thermo Group;
or
|
|
|
(v)
|
any
“change of
control” or similar event shall occur under any document with
respect to any equity or debt instrument issued or incurred by the Thermo
Group.
|
|
|
(b)
|
The
Borrower must promptly notify the COFACE Agent if it becomes aware that
the circumstances referred to in paragraph (c) below have occurred or
are likely to occur.
|
|
|
(c)
|
Upon
the occurrence of a Change of Control, the Total Commitments shall be
cancelled and all outstanding Loans, together with accrued interest and
all other amounts accrued under the Finance Documents, shall become
immediately due and payable.
|
|
7.3
|
Mandatory Prepayment – Initial
Excess Cash Flow
|
On the
First Repayment Date, the Borrower shall apply an amount equal to any Excess
Cash Flow accrued since the date of this Agreement (in an amount determined by
the Borrower and verified by the COFACE Agent) as follows:
|
|
(a)
|
firstly,
provided no
Default has occurred and is continuing, in or towards payment of a portion
of the Borrower’s obligations to Thermo under the Thermo Cash Contribution
Agreement, through payment:
|
59
|
|
(i)
|
directly
to the DSRA Providers on behalf of Thermo in the proportions directed by
Thermo to the Borrower in writing;
and
|
|
|
(ii)
|
if
Thermo’s obligations to the DSRA Providers under the Relevant Agreements
have been repaid in full, to Thermo in reimbursement of any amounts
previously paid directly by Thermo to the DSRA Providers under the
Relevant Agreements 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 amount paid 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) (Permitted Withdrawals from the
Collection Account) of the Accounts Agreement, Clause 9.3 (Excess Funding in the Debt
Service 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 Thermo pursuant to this Clause 7.3(a)
shall reduce any amount owing by the Borrower to Thermo under the Thermo Cash
Contribution Agreement. No payment shall be made under this Clause
7.3(a) to the extent any payments would exceed the amount owing by the Borrower
to Thermo under the Thermo Cash Contribution Agreement (but excluding any
payments of interest or capitalised interest due and owing by the Borrower to
Thermo under the Thermo Cash Contribution Agreement). Any such
interest or capitalised interest shall only be payable by the Borrower to Thermo
following satisfaction of each of the distribution conditions set out at Clause
22.6 (Limitations on Dividends
and Distributions) (other than Clause 22.6(b)(iv) (Limitations on Dividends and
Distributions));
|
|
(b)
|
secondly,
in an amount up to fifty million Dollars (US$50,000,000) (the “Retained Excess Amount”)
by way of transfer to the Capital Expenditure Account in accordance with
the Accounts Agreement; and
|
|
|
(c)
|
finally,
in mandatory prepayment of the Loans, in an amount determined by the
Borrower (and verified by the COFACE Agent) five (5) Business Days
prior to the First Repayment Date (taking into account all accrued Excess
Cash Flow less
the amounts paid pursuant to Clauses 7.3(a) and (b)
above),
|
provided that, in each case,
for the purpose of calculating such Excess Cash Flow, an amount equivalent to
the amount of Debt Service to be paid by the Borrower on the First Repayment
Date shall not be included in the determination of Excess Cash
Flow.
60
|
7.4
|
Mandatory Prepayment – Ongoing
Excess Cash Flow
|
No later
than thirty (30) days after the end of any Debt Service Period occurring
after the end of the Availability Period (other than the First Repayment Date),
the Borrower shall apply an amount equal to thirty per cent. (30%) of all
Excess Cash Flow as follows:
|
|
(a)
|
firstly, provided no Default
has occurred and is continuing, in or towards payment of a portion of the
Borrower’s obligations to Thermo under the Thermo Cash Contribution
Agreement, through payment:
|
|
|
(i)
|
directly
to the DSRA Providers on behalf of Thermo in the proportions directed by
Thermo to the Borrower in writing;
and
|
|
|
(ii)
|
if
Thermo’s obligations to the DSRA Providers under the Relevant Agreements
have been repaid in full, to Thermo in reimbursement of any amounts
previously paid directly by Thermo to the DSRA Providers under the
Relevant Agreements 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 amount paid 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) (Permitted Withdrawals from the
Collection Account) of the Accounts Agreement, Clause 9.3 (Excess Funding in the Debt
Service 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 Thermo pursuant to this Clause 7.4(a)
shall reduce any amount owing by the Borrower to Thermo under the Thermo Cash
Contribution Agreement. No payment shall be made under this Clause
7.4(a) to the extent any payments would exceed the amount owing by the Borrower
to Thermo under the Thermo Cash Contribution Agreement (but excluding any
payments of interest or capitalised interest due and owing by the Borrower to
Thermo under the Thermo Cash Contribution Agreement). Any such
interest or capitalised interest shall only be payable by the Borrower to Thermo
following satisfaction of each of the distribution conditions set out at Clause
22.6 (Limitations on Dividends
and Distributions) (other than Clause 22.6(b)(iv) (Limitations on Dividends and
Distributions));
|
|
(b)
|
secondly,
in an amount up to the Retained Excess Amount by way of transfer to 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 any previous transfer pursuant to this
provision; and
|
61
|
|
(c)
|
thirdly,
in mandatory prepayment of the Loans provided that, such
prepayment shall not apply to the first ten million Dollars
(US$10,000,000) of Excess Cash Flow which accrues in each such Debt
Service Period.
|
|
7.5
|
Mandatory Prepayment -
Insurance and Condemnation
Events
|
|
|
(a)
|
Subject
to Clauses 7.5(b) below, the Borrower shall prepay the Loans in an
amount equal to one hundred per cent. (100%)
of the aggregate Net Cash Proceeds from any Insurance and Condemnation
Event and other extraordinary recoveries by the Borrower or any of its
Subsidiaries.
|
|
|
(b)
|
Such
prepayments shall be made within three (3) Business Days after
receipt of the Net Cash Proceeds from any Insurance and Condemnation Event
by the Borrower or any of its Subsidiaries, provided that 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 be
required:
|
|
|
(i)
|
in
connection with such Insurance and Condemnation Event yielding in
aggregate less than five hundred thousand Dollars (US$500,000) in Net Cash
Proceeds; or
|
|
|
(ii)
|
with
respect to any such Net Cash Proceeds which are committed by the Borrower
to be reinvested in replacement assets of French suppliers or the
procurement or Launch of a Satellite or Satellites acquired or planned to
be acquired pursuant to the then current business plan of the Borrower (as
evidenced 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 the relevant Insurance are placed into the
Insurance Proceeds Account (such account to be secured in favour of the
Security Agent (for and on behalf of itself and the other Finance
Parties)) and, provided
that no action is being taken under Clause 24 (Remedies Upon an Event of
Default), will be applied by the COFACE Agent in payment to a
supplier of such replacement asset or replacement Satellite, any long lead
items, launch services, insurances or other costs directly arising in
relation to such purchase or Launch in accordance with the terms and
conditions agreed between the Borrower and the Supplier. Any
excess in Net Cash Proceeds after taking into account such payments and
costs shall be transferred to the Collection Account in accordance with
the Accounts Agreement.
|
|
7.6
|
Mandatory Prepayments – Asset
Dispositions
|
|
|
(a)
|
The
Borrower shall prepay the Loans in an amount equal to one hundred per cent. (100%)
of the aggregate Net Cash Proceeds from any Asset Disposition by the
Borrower or any of its
Subsidiaries.
|
62
|
|
(b)
|
Such
prepayment shall be made within three (3) days after the date of
receipt of the Net Cash Proceeds of any such transaction by the Borrower
or any of its Subsidiaries, provided that, so long
as no Default has occurred and is continuing, no prepayment shall be
required pursuant to this
Clause 7.6:
|
|
|
(i)
|
in
connection with such Asset Dispositions yielding less than five hundred
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 Cash Proceeds by such
person in replacement assets (useful to the Borrower and its Subsidiaries
in the conduct of business in accordance with Clause 22.12 (Nature of Business));
or
|
|
|
(B)
|
committed
(as evidenced by a contractual agreement for the purchase or acquisition
of assets with a vendor of such assets) within six (6) Months after
receipt of such Net Cash Proceeds by such person to be reinvested in the
procurement or Launch of a Satellite or Satellites acquired or to be
acquired pursuant to the then current business plan of the
Borrower.
|
|
7.7
|
Mandatory Prepayment – COFACE
Insurance Policy
|
If the
credit insurance cover under the COFACE Insurance Policy is not in full force
and effect 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
Total Commitments and declare all outstanding Loans, together with accrued
interest, and all other amounts accrued under the Finance Documents immediately
due and payable, whereupon the Total Commitments will be cancelled and all such
outstanding amounts will become immediately due and payable.
|
7.8
|
Voluntary
Cancellation
|
The
Borrower may, 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 Responsible Officer
demonstrating that the Borrower has sufficient funds to finance the
Project to the satisfaction of the COFACE Agent after any such
cancellation,
|
cancel
the whole 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 Commitments of 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
may agree) prior notice, prepay the whole or any part of the Loans (but,
if in part, being an amount that reduces the amount of the Loans by a
minimum amount of one million Dollars (US$1,000,000)). The
Borrower may make a prepayment in accordance with this Clause 7.9 on
a Repayment Date.
|
63
|
|
(b)
|
If
such a prepayment is made on a day other than the last day of an Interest
Period, the Borrower shall make that prepayment together with any Break
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 Availability Period
(or, if earlier, the day on which the Available Facility is zero
(0)).
|
|
|
(d)
|
Any
prepayment under this Clause 7.9 shall satisfy the obligations under
Clause 6.1 (Repayment) against the
outstanding repayment instalments in inverse order of
maturity.
|
|
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 be increased
under paragraph (c) of Clause 13.1 (Tax Gross-up);
or
|
|
|
(ii)
|
any
Lender claims indemnification from the Borrower under Clause 13.2
(Tax Indemnity)
or Clause 14.1 (Increased
Costs),
|
the
Borrower may, whilst the circumstance giving rise to the requirement for
indemnification continues, give the COFACE Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender’s participation 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 the Borrower has
given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay that
Lender’s participation in that
Loan.
|
|
7.11
|
Application of Mandatory
Prepayments
|
Other
than in respect of any prepayment under Clause 7.1 (Illegality), all mandatory
prepayments shall be applied:
|
|
(a)
|
pro rata among the
Facilities and within each Facility;
and
|
|
|
(b)
|
in
inverse order of maturity across the remaining scheduled repayments under
each Facility.
|
64
|
7.12
|
Restrictions
|
|
|
(a)
|
Any
notice of cancellation or prepayment given by the Borrower under this
Clause 7 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
|
|
(b)
|
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium 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 Loans or cancel
all or any part of the Commitments except at the times and in the manner
expressly provided for in this
Agreement.
|
|
|
(e)
|
No
amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
|
|
|
(f)
|
If
the COFACE Agent receives a notice under this Clause 7 it shall
promptly forward a copy of that notice to either the Borrower or the
affected Lender, as appropriate.
|
|
|
(g)
|
The
Borrower shall promptly notify the COFACE Agent (but in any event no later
than three (3) Business Days) of any payment pursuant to this
Clause 7, and the COFACE Agent shall promptly notify the Lenders (but
in any event no later than five (5) Business Days) of the
same.
|
|
8.
|
INTEREST
|
|
8.1
|
Calculation of
Interest
|
The rate
of interest on each Loan for each Interest Period is the percentage rate
per annum which is the aggregate of the:
|
|
(a)
|
Applicable
Margin;
|
|
|
(b)
|
LIBOR;
and
|
|
|
(c)
|
Mandatory
Cost, if any.
|
|
8.2
|
Payment of
Interest
|
The
Borrower shall pay accrued interest on each Loan on the last day of each
Interest Period.
65
|
8.3
|
Default
Interest
|
|
|
(a)
|
If
an Obligor fails to pay any amount payable by it under a Finance Document
on its due date, interest shall accrue on the overdue amount from the due
date up to the date of actual payment (both before and after judgment) at
a rate which, subject to paragraph (b) below, is two per cent. (2%)
higher than the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in the currency
of the overdue amount for successive Interest Periods, each of a duration
selected by the COFACE Agent (acting reasonably). Any interest
accruing under this Clause 8.3 shall be immediately payable by the
Borrower on demand by the COFACE
Agent.
|
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that
Loan:
|
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration equal
to the unexpired portion of the current Interest Period relating to that
Loan; and
|
|
|
(ii)
|
the
rate of interest applying to the overdue amount during that first Interest
Period shall be two per cent. (2%)
higher than the rate which would have applied if the overdue amount had
not become due.
|
|
|
(c)
|
Default
interest (if unpaid) arising on an overdue amount will be compounded with
the overdue amount at the end of each Interest Period applicable to that
overdue amount but will remain immediately due and
payable.
|
|
8.4
|
Notification of Rates of
Interest
|
The
COFACE Agent shall within two (2) Business Days after a Quotation Day
notify the Lenders and the Borrower of the determination of a rate of interest
under this Agreement.
|
9.
|
INTEREST
PERIODS
|
|
9.1
|
Interest
Periods
|
|
|
(a)
|
The
Interest Period for which any Loan is outstanding shall be divided into
successive Interest Periods each of which shall start on the last day 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 and end on (but
excluding) the last day of such Interest Period. Each
subsequent Interest Period in respect of such Loan shall start (and
include) on the last day of the previous Interest Period and end on (but
excluding) the last day of the relevant Interest Period provided that, the
Interest Period occurring prior to the First Repayment Date shall start
(and include) on the last day of the previous Interest Period and end on
(but excluding) the First Repayment Date;
and
|
|
|
(ii)
|
after
the first Utilisation shall start on (and include) the Utilisation Date of
the relevant Loan and end on (but excluding) the last day of the current
Interest Period for the first
Utilisation.
|
66
|
9.2
|
Duration
|
|
|
(a)
|
The
duration of each Interest Period shall, save as otherwise provided in this
Agreement, be six (6) Months or such other period as the COFACE Agent
may agree, provided
that any Interest Period that would otherwise extend beyond a
Repayment Date relating to any Loan shall be of such duration that it
shall end on that Repayment Date. Each following Interest
Period shall end on the following Repayment
Date.
|
|
|
(b)
|
An
Interest Period for a Loan shall not extend beyond the Final Maturity
Date.
|
|
9.3
|
Non-Business
Days
|
If an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is not).
|
9.4
|
Consolidation of
Loans
|
If
two (2) or more Interest Periods:
|
|
(a)
|
relate
to Loans; and
|
|
|
(b)
|
end
on the same date,
|
those
Loans will be consolidated into, and treated as, a single Loan on the last day
of the Interest Period.
|
10.
|
CHANGES
TO THE CALCULATION OF INTEREST
|
|
10.1
|
Absence of
Quotations
|
Subject
to Clause 10.2 (Market
Disruption), if LIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply a quotation by 11:00 a.m.
(London time) on the Quotation Day, the applicable LIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
|
10.2
|
Market
Disruption
|
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender’s share of that Loan for
the Interest Period shall be the percentage rate per annum which is
the sum of:
|
|
|
(i)
|
the
Applicable Margin;
|
|
|
(ii)
|
the
rate notified to the COFACE Agent by that Lender as soon as practicable
and in any event before interest is due to be paid in respect of that
Interest Period, to be that which expresses as a percentage rate
per annum the cost to that Lender of funding its participation in
that Loan from whatever source it may reasonably select;
and
|
67
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender’s participation in the
Loan.
|
|
|
(b)
|
In
this Agreement “Market
Disruption Event” means:
|
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period the
Screen Rate is not available and none or only one (1) of the
Reference Banks supplies a rate to the COFACE Agent to determine LIBOR for
Dollars for the relevant Interest Period;
or
|
|
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant Interest
Period, the COFACE Agent receives notifications from a Lender or Lenders
(whose participations in a Loan exceed thirty per cent. (30%) of
that Loan) that the cost to it or them of obtaining matching deposits in
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 the Borrower so
requires, the COFACE Agent and the Borrower shall enter into negotiations
(for a period of not more than thirty (30) days) with a view to
agreeing a substitute basis for determining the rate of
interest.
|
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and the Borrower, be binding on all
Parties.
|
|
10.4
|
Break
Costs
|
|
|
(a)
|
The
Borrower shall, within three (3) Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or
any part of a Loan or Unpaid Sum being paid by the Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
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 each Lender) a
fee computed at the rate of one point fifteen per cent. (1.15%)
per annum on that Lender’s daily undrawn Available Commitment
under:
|
|
|
(i)
|
Facility A
for the Availability Period applicable to Facility A;
and
|
|
|
(ii)
|
Facility B
for the Availability Period applicable to Facility
B.
|
68
|
|
(b)
|
The
accrued commitment fee is payable:
|
|
|
(i)
|
on
the last day of each successive period of six (6) Months which 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 relevant Lender’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 each Mandated
Lead Arranger) an arrangement fee in an amount equal to two point eight
per cent.
(2.8%) of the aggregate principal amount of the Total Commitments as at
the date of this Agreement (the “Up-front
Fee”).
|
|
|
(b)
|
The
Up-front Fee shall be due on the date of this Agreement and payable on the
earlier of:
|
|
|
(i)
|
sixty
(60) days from the date of this Agreement;
and
|
|
|
(ii)
|
Financial
Close.
|
|
11.3
|
COFACE Agent
Fees
|
|
|
(a)
|
The
Borrower shall pay to the COFACE Agent (for its own account) an annual
agency fee of fifteen thousand Dollars (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 COFACE Agent Fee is payable at Financial
Close. Each subsequent payment is payable on each anniversary
of the date of this Agreement for as long as any Commitment is in force or
amount is outstanding under the Finance
Documents.
|
|
11.4
|
Security Agent
Fees
|
|
|
(a)
|
The
Borrower shall pay to the Security Agent (for its own account) an annual
agency fee of thirty thousand Dollars (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 Security Agent Fee is payable at Financial
Close. Each subsequent payment is payable on each anniversary
of the date of this Agreement for as long as any Commitment is in force or
amount is outstanding under the Finance
Documents.
|
|
11.5
|
Non-Refundable
|
Each of
the fees set out in this Clause 11 (Fees) once paid are
non-refundable and non-creditable against other fees payable in connection with
the Project.
69
|
12.
|
COFACE
INSURANCE PREMIA
|
|
12.1
|
Payment by the
Borrower
|
The
Borrower shall bear the cost of the COFACE Insurance Premia payable in respect
of, or in connection with, the COFACE Insurance Policy and shall pay all such
amounts to the COFACE Agent (for the account of COFACE). The COFACE
Insurance Premia is due and payable in full to the COFACE Agent (for the account
of COFACE) on the Utilisation Date for the first Utilisation.
|
12.2
|
Financing with Proceeds of
Loans
|
|
|
(a)
|
Subject
to all the other terms and conditions of this Agreement, the COFACE
Insurance Premia shall be financed from the first Utilisation under the
Facilities.
|
|
|
(b)
|
Loans
made under a Facility on account of the COFACE Insurance Premia shall be
included in the principal amount of a Facility and repaid to the COFACE
Agent in accordance with the relevant provisions in this Agreement and the
Borrower shall pay interest on such amount at the rates determined under,
and in accordance with, Clause 8 (Interest) and repay
such amount together with all other principal as stated in Clause 6.1
(Repayment).
|
|
12.3
|
Borrower’s Payment
Obligations
|
|
|
(a)
|
The
Borrower acknowledges that the obligation to pay one hundred per cent. (100%)
of the COFACE Insurance Premia as and when it arises is absolute and
unconditional. If the COFACE Insurance Premia due and payable
is not financed or paid out of any Loans under this Agreement or in the
event that the undrawn amount under a Facility is not sufficient to
finance one hundred per cent. (100%)
of the COFACE Insurance Premia due to COFACE under the COFACE Insurance
Policy, the Borrower shall pay directly to the COFACE Agent the amount of
any such COFACE Insurance Premia not so financed or
paid.
|
|
|
(b)
|
Subject
to Clause 12.3(c) below, as of the date of this Agreement the premia
due to COFACE shall be calculated at a rate estimated to be six point
sixty eight per cent. (6.68%),
and in an estimated amount being the aggregate
of:
|
|
|
(i)
|
thirty
five million two hundred seventy two thousand two hundred and seventy six
Dollars (US$35,272,276) in respect of Facility A;
and
|
|
|
(ii)
|
one
million four hundred and forty two thousand eight hundred and eighty
Dollars (US$1,442,880) in respect of Facility
B.
|
70
|
|
(c)
|
The
COFACE Agent will only be notified of the actual amount of the COFACE
Insurance Premia on the date of final issuance of each COFACE Insurance
Policy. Following receipt of each COFACE Insurance Policy, the
COFACE Agent shall promptly notify the Borrower of the actual amount of
the COFACE Insurance Premia. If the actual amount of the COFACE
Insurance Premia is greater than the estimated amount set out in
paragraph (b) above, the Borrower shall be obliged to make payment of
the actual amount of the COFACE Insurance Premia. Accordingly,
the estimated amount provided in Clauses 3.1(c) (Payment of the COFACE
Insurance Premia) and 3.2(b) (Payment of the COFACE
Insurance Premia) shall be automatically increased or reduced by
the amounts required to ensure the payment of the premiums after
adjustment by COFACE, which would result in an increase or reduction by a
corresponding amount in the Total Commitments subject to available
Commitments). The Borrower acknowledges that the obligation to
pay the COFACE Insurance premia related to this Agreement is absolute and
unconditional.
|
|
|
(d)
|
Notwithstanding
the above a minimum premium being, as of the date of this Agreement, in an
amount equal to the 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 Insurance Policy upon the execution of the relevant COFACE
Insurance Policy. Such amounts shall remain the property of
COFACE 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 the COFACE Insurance Premia, including in
the event of a cancellation, an acceleration or a prepayment of any Loan
under this Agreement.
|
|
|
(f)
|
Notwithstanding
paragraph (e) above and subject to paragraph (g)
below:
|
|
|
(i)
|
with
respect to any partial cancellation of any undisbursed amount of a
Facility; and/or
|
|
|
(ii)
|
immediately
following the end of the Availability Period, where an Available
Commitment remains outstanding,
|
the
Borrower shall be entitled to submit a request to the COFACE Agent for
reimbursement of any proportionate amount of the COFACE Insurance Premia, in an
amount up to one hundred per cent. (100%) of the
total amount of the COFACE Insurance Premia, which relates to such cancelled
amount of any undisbursed portion of a Facility and/or outstanding Available
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 of the COFACE
Agent.
|
|
(g)
|
No
reimbursement of the COFACE Insurance premia shall be made by the COFACE
Agent if:
|
|
|
(i)
|
a
Default shall have occurred and be continuing;
and
|
|
|
(ii)
|
the
COFACE Agent has not received funds from COFACE in an amount equal to the
COFACE Insurance Premia to be
reimbursed.
|
71
|
13.
|
TAX
GROSS-UP AND INDEMNITIES
|
|
13.1
|
Tax
Gross-up
|
|
|
(a)
|
The
Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
|
(b)
|
The
Borrower shall, promptly upon becoming aware that it must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the COFACE Agent accordingly. Similarly, a
Lender shall notify the COFACE Agent on becoming so aware in respect of a
payment payable to that Lender. If the COFACE Agent receives
such notification from a Lender it shall notify the
Borrower.
|
|
|
(c)
|
If
a Tax Deduction is required by law to be made by the Borrower, the amount
of the payment due from the Borrower shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
|
(d)
|
If
the Borrower is required to make a Tax Deduction, it shall make that Tax
Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by
law.
|
|
|
(e)
|
Within
thirty (30) days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower making that
Tax Deduction shall deliver to the COFACE Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing
authority.
|
|
|
(f)
|
The
Borrower is not required to make an increased payment to a Lender under
paragraph (c) above for a Tax Deduction in respect of Tax from a
payment of interest on any Loan, if on the date on which the payment falls
due:
|
|
|
(i)
|
the
payment could have been made to 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 Lender other than as a result of
any change after the date it became a Lender under this
Agreement:
|
|
|
(A)
|
in
(or in the interpretation, administration, or application of) any law or
double taxation agreement, or any published practice or concession of any
relevant authority; or
|
|
|
(B)
|
in
the circumstance of the Borrower;
or
|
|
|
(ii)
|
the
Borrower is able to demonstrate that the payment could have been made to
the Lender without the Tax Deduction had that Lender complied with its
obligations under paragraph (g)
below.
|
72
|
|
(g)
|
Each
Lender agrees to use reasonable efforts (consistent with legal and
regulatory restrictions and subject to overall policy considerations of
such Lender) to file any Withholding Forms as requested by the Borrower
that may be necessary to establish an exemption from withholding of
U.S. federal income taxes.
|
|
13.2
|
Tax
Indemnity
|
|
|
(a)
|
The
Borrower shall (within three (3) Business Days of demand by the
COFACE Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or has
been (directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance
Document.
|
|
|
(b)
|
Paragraph (a)
above shall not apply with respect to any Tax assessed on a Finance
Party:
|
|
|
(i)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
|
(ii)
|
under
the law of the jurisdiction in which that Finance Party’s Facility Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if that
Tax is imposed 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 or to the extent a loss, liability or cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 13.1 (Tax Gross-up);
or
|
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 13.1
(Tax Gross-up)
but was not so compensated solely because one of the exclusions in
paragraph (f) of Clause 13.1 (Tax Gross-up)
applied.
|
|
|
(c)
|
A
Protected Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the COFACE Agent of the
event which will give, or has given, rise to the claim, following which
the COFACE Agent shall notify the
Borrower.
|
|
|
(d)
|
A
Protected Party shall, on receiving a payment from the Borrower under this
Clause 13.2, notify the COFACE
Agent.
|
|
13.3
|
Tax
Credit
|
If the
Borrower makes a Tax Payment and the relevant Finance Party determines
that:
|
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which that
Tax Payment forms part, or to that Tax Payment;
and
|
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax
Credit,
|
73
the
Finance Party shall pay an amount to the Borrower which that Finance Party
determines will leave it (after that payment) in the same after-Tax position as
it would have 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 subsequently disallowed or reduced, the Borrower shall
indemnify the Finance Party for such amount;
and
|
|
|
(iii)
|
nothing
in this Clause 13.3 shall require a Finance Party to disclose any
confidential information to the Borrower (including, without limitation,
its tax returns or its
calculations).
|
|
13.4
|
Stamp
Taxes
|
The
Borrower shall pay and, within three (3) Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party incurs
in relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document.
|
13.5
|
Value Added
Tax
|
|
|
(a)
|
All
amounts set out, or expressed to 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 be deemed to be exclusive of any VAT
which is chargeable on such supply, and accordingly, subject to
paragraph (b) below, if VAT is chargeable on any 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 time as paying the
consideration) an amount equal to the amount of the VAT (and such Finance
Party shall promptly provide an appropriate VAT invoice to such
Party).
|
|
|
(b)
|
Where
any Party is required by any of the Finance Documents to reimburse a
Finance Party in respect of any costs or expenses, that Party shall also
at the same time pay and indemnify the Finance Party against all VAT
incurred by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that neither it nor
any other member of the group of which it is a member for VAT purposes is
entitled to credit or repayment from the relevant tax authority in respect
of the VAT.
|
74
|
14.
|
INCREASED
COSTS
|
|
14.1
|
Increased
Costs
|
|
|
(a)
|
Subject
to Clause 14.3 (Exceptions) the
Borrower shall, within five (5) Business Days of a demand by the
COFACE Agent, pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates as
a result of:
|
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation;
or
|
|
|
(ii)
|
compliance
with any law or regulation made after the date of this
Agreement.
|
|
|
(b)
|
In
this Agreement “Increased
Costs” means:
|
|
|
(i)
|
a
reduction in the rate of return from a Facility or on a Finance Party’s
(or its Affiliate’s) overall
capital;
|
|
|
(ii)
|
an
additional or increased cost; or
|
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment
or funding or performing its obligations under any Finance
Document.
|
14.2
|
Increased Cost
Claims
|
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 14.1
(Increased Costs)
shall notify the COFACE Agent of the event giving rise to the claim,
following which the COFACE Agent shall promptly notify the
Borrower.
|
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the COFACE
Agent, provide a certificate confirming the amount of its Increased
Costs.
|
|
14.3
|
Exceptions
|
Clause 14.1
(Increased Costs) does
not apply to the extent any Increased Cost is:
|
|
(a)
|
attributable
to a Tax Deduction required by law to be made by the
Borrower;
|
|
|
(b)
|
compensated
for by Clause 13.2 (Tax Indemnity) (or would have
been compensated for under Clause 13.2 (Tax Indemnity) but was
not so compensated solely because any of the exclusions in
paragraph (b) of Clause 13.2 (Tax Indemnity)
applied);
|
|
|
(c)
|
compensated
for by the payment of the Mandatory Cost;
or
|
75
|
|
(d)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation.
|
|
15.
|
OTHER
INDEMNITIES
|
|
15.1
|
Currency
Indemnity
|
|
|
(a)
|
If
any sum due from an Obligor under the Finance Documents (a “Sum”), or any order,
judgment or award given or made in relation to a Sum, has to be converted
from the currency (the “First Currency”) in
which that Sum is payable into another currency (the “Second Currency”) for
the purpose of:
|
|
|
(i)
|
making
or filing a claim or proof against an
Obligor;
|
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
|
the
Borrower shall as an independent obligation, within three (3) Business Days
of demand, 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 any discrepancy between:
|
|
(A)
|
the
rate of exchange used to convert that Sum from the First Currency into the
Second Currency; and
|
|
|
(B)
|
the
rate or rates of exchange available to that person at the time of its
receipt of that Sum.
|
|
|
(b)
|
The
Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be
payable.
|
|
15.2
|
Other
Indemnities
|
The
Borrower shall, within five (5) Business Days of demand, indemnify each
Finance Party (and its Affiliates) against any cost, loss or liability incurred
by that Finance Party (or Affiliate) as a result of:
|
|
(a)
|
the
occurrence of any Event of Default;
|
|
|
(b)
|
a
failure by the Borrower to pay any amount due under a Finance Document on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 30 (Sharing among the Finance
Parties);
|
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Loan requested by
the Borrower in a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this Agreement (other
than by reason of default or negligence by that Lender
alone);
|
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by the Borrower;
or
|
76
|
|
(e)
|
the
breach by the Borrower or any member of the Group of any applicable
Environmental Laws or Environmental Permits. Any Affiliate of a
Finance Party may rely on this Clause
15.2(e).
|
|
15.3
|
Indemnity to the COFACE
Agent
|
The
Borrower shall promptly indemnify the COFACE Agent against any cost, loss or
liability incurred by the COFACE Agent (acting reasonably) as a result
of:
|
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
|
|
(b)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
|
15.4
|
Indemnity to the Security
Agent
|
|
|
(a)
|
The
Borrower shall promptly indemnify the Security Agent against any cost,
loss or liability incurred by the Security Agent as a result
of:
|
|
|
(i)
|
the
protection or enforcement of a Lien 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 by
law.
|
|
|
(b)
|
The
Security Agent may, in priority to any payment to other Finance Parties,
indemnify itself out of the assets subject to a Lien expressed to be
created under the Security Documents in respect of, and pay and retain,
all sums necessary to give effect to the indemnity in this
Clause 15.4.
|
|
16.
|
MITIGATION
BY THE LENDERS
|
|
16.1
|
Mitigation
|
|
|
(a)
|
Each
Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 7.1 (Illegality),
Clause 13 (Tax
gross-up and indemnities), Clause 14 (Increased costs) or
paragraph 3 of Schedule 4 (Mandatory Cost Formula)
including (but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility
Office.
|
|
|
(b)
|
Paragraph (a)
above does not in any way limit the obligations of the Borrower under the
Finance Documents.
|
|
16.2
|
Limitation of
Liability
|
|
|
(a)
|
The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 16.1 (Mitigation).
|
77
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation) if,
in the opinion of that Finance Party (acting reasonably), to do so might
be prejudicial to it.
|
|
17.
|
COSTS
AND EXPENSES
|
|
17.1
|
Transaction
Expenses
|
The
Borrower shall promptly on demand pay the COFACE Agent, the Security Agent and
each Mandated Lead Arranger the amount of all costs and expenses (including
legal fees) reasonably incurred by any of them in connection with the
negotiation, preparation, printing, execution and syndication of:
|
|
(a)
|
this
Agreement and any other documents referred to in this Agreement;
and
|
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
17.2
|
Amendment
Costs
|
If:
|
|
(a)
|
the
Borrower requests an amendment, waiver or consent;
or
|
|
|
(b)
|
an
amendment is required pursuant to Clause 31.10 (Change of
Currency),
|
the
Borrower shall, within three (3) Business Days of demand, reimburse the
COFACE Agent and the Security Agent for the amount of all costs and expenses
(including legal fees) incurred by the COFACE Agent and the Security Agent in
responding to, evaluating, negotiating or complying with that request or
requirement.
|
17.3
|
Enforcement
Costs
|
The
Borrower shall, within three (3) Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
|
17.4
|
Security Agent
Expenses
|
The
Borrower shall, within three (3) Business Days of demand, pay to the
Security Agent the amount of all costs and expenses (including legal fees)
incurred by it in connection with the release of any Lien created pursuant to
any Security Document.
|
18.
|
REPRESENTATIONS
|
Subject
to the disclosures made by the Borrower set out in Schedule 24 (Disclosures), the Borrower
makes the representations and warranties set out in this Clause 18 (Representations) to each
Finance Party on the date of this Agreement.
78
|
18.1
|
Status
|
|
|
(a)
|
It
is a corporation, duly incorporated and validly existing (and to the
extent applicable, in good standing) under the law of its jurisdiction of
incorporation.
|
|
|
(b)
|
It
and each of its Subsidiaries has the power to own its assets and carry on
its business as it is being
conducted.
|
|
18.2
|
Binding
Obligations
|
Subject
to the Reservations:
|
|
(a)
|
the
obligations expressed to be assumed by it in each Transaction Document to
which it is a party are legal, valid, binding and enforceable obligations;
and
|
|
|
(b)
|
(without
limiting the generality of paragraph (a) above), each Security
Document to which it is a party creates the security interests which that
Security Document purports to create and those security interests are
valid and effective.
|
|
18.3
|
Non-Conflict with other
Obligations
|
The entry
into and performance by it of, and the transactions contemplated by, the
Transaction Documents and the granting of the security interests contemplated by
the Security Documents do not and will not conflict with:
|
|
(a)
|
any
Applicable Law;
|
|
|
(b)
|
the
constitutional documents of any member of the Group;
or
|
|
|
(c)
|
any
agreement or instrument binding upon it or any member of the Group or any
of its, or any member of the Group’s, assets or constitute a default or
termination event (however described) under any such agreement or
instrument, where such conflict would have or is reasonably likely to have
a Material Adverse Effect.
|
|
18.4
|
Power and
Authority
|
|
|
(a)
|
It
has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Transaction Documents to which it is or will be a party and the
transactions contemplated by those Transaction
Documents.
|
|
|
(b)
|
No
limit on its powers will be exceeded as a result of the borrowing, grant
of security or giving of guarantees or indemnities contemplated by the
Transaction Documents to which it is a
party.
|
|
18.5
|
No Proceedings Pending or
Threatened
|
No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which is not frivolous, vexatious or otherwise an abuse
of court process, and which, if adversely determined, could reasonably have a
Material Adverse Effect (to the best of its knowledge and belief) have been
started against it or any of its Subsidiaries.
79
|
18.6
|
Authorisations
|
|
|
(a)
|
Each
of the Borrower and its Subsidiaries has all material Authorisations
required:
|
|
|
(i)
|
to
enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Transaction Documents to which it is a party;
and
|
|
|
(ii)
|
to
make the Transaction Documents to which it is a party admissible in
evidence in its jurisdiction of
incorporation,
|
have been
obtained or effected and are in full force and effect.
|
|
(b)
|
Each
of the Borrower and its
Subsidiaries:
|
|
|
(i)
|
has
all Authorisations required for it to conduct its business as currently
conducted, each of which is in full force and effect, is final and not
subject to review on appeal and is not the subject of any pending or, to
the best of its knowledge, threatened attack by direct or collateral
proceeding;
|
|
|
(ii)
|
is
in compliance with each Authorisation applicable to it and in compliance
with all other Applicable Laws relating to it or any of its respective
properties; and
|
|
|
(iii)
|
has
filed in a timely manner all material reports, documents and other
materials required to be filed by it under all Applicable Laws with any
Governmental Authority and has retained all material records and documents
required to be retained by it under Applicable
Law,
|
except in
each case where the failure to have done so, comply or file could not reasonably
be expected to have a Material Adverse Effect.
|
18.7
|
Intellectual Property
Matters
|
|
|
(a)
|
Each
of the Borrower and its Subsidiaries owns or possesses rights to use all
material franchises, licences, copyrights, copyright applications,
patents, patent rights or licences, patent applications, trademarks,
trademark rights, service marks, service xxxx rights, trade names, trade
name rights, copyrights and other rights with respect to the foregoing
which are reasonably necessary to conduct its business as currently
conducted (the “Intellectual
Property”).
|
|
|
(b)
|
No
event has occurred which permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such material rights,
and, to the Borrower’s knowledge, neither the Borrower nor any Subsidiary
thereof is liable to any person for infringement under Applicable Law with
respect to any such rights as a result of its business operations except
as could not reasonably be expected to have a Material Adverse
Effect.
|
80
|
18.8
|
Environmental
Matters
|
|
|
(a)
|
The
properties owned, leased or operated by the Borrower and its Subsidiaries
now or in the past do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations
which:
|
|
|
(i)
|
constitute
or constituted an unremediated violation of applicable Environmental Laws
and Environmental Permits; or
|
|
|
(ii)
|
could
give rise to a material liability under applicable Environmental Laws and
Environmental Permits.
|
|
|
(b)
|
To
the knowledge of the Borrower and its Subsidiaries, the Borrower, each of
its Subsidiaries and such properties and all operations conducted in
connection therewith are in compliance, and, at all such times when such
properties have been owned or operated by the Borrower or any of its
Subsidiaries have been in compliance, with all applicable Environmental
Laws and Environmental Permits, and there is no contamination at, under or
about such properties or such operations which could interfere with the
continued operation of such properties or materially impair the fair
saleable value thereof.
|
|
|
(c)
|
Neither
the Borrower nor any Subsidiary thereof has received any notice of
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters, Hazardous Materials, or
compliance with Environmental Laws and Environmental Permits, nor does the
Borrower or any Subsidiary thereof have knowledge or reason to believe
that any such notice will be received or is being
threatened.
|
|
|
(d)
|
To
the knowledge of the Borrower and its Subsidiaries, Hazardous Materials
have not been transported or disposed of to or from the properties owned,
leased or operated by the Borrower and its Subsidiaries in violation of,
or in a manner or to a location which could give rise to material
liability under, Environmental Laws and Environmental Permits, nor have
any Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of such properties in violation of, or in a manner that
could give rise to material liability under, any applicable Environmental
Laws.
|
|
|
(e)
|
No
judicial proceedings or governmental or administrative action is pending
or, to the knowledge of the Borrower, threatened under any Environmental
Law or Environmental Permits to which the Borrower or any Subsidiary
thereof is or will be named as a potentially responsible party, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Borrower, any
Subsidiary or properties owned, leased or operated by the Borrower or any
Subsidiary, now or in the past, that could reasonably be expected to have
a Material Adverse Effect.
|
|
|
(f)
|
There
has been no release, nor to the best of the Borrower’s knowledge, threat
of release, of Hazardous Materials at or from properties owned, leased or
operated by the Borrower or any Subsidiary, now or in the past, in
violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws or Environmental Permits that could
reasonably be expected to have a Material Adverse
Effect.
|
81
|
|
(g)
|
There
are no facts, circumstances or conditions relating to the past or present
business or operations of the Borrower or any Subsidiary, including the
disposal of any wastes, Hazardous Material or other materials, or to the
past or present ownership or use of any real property by the Borrower or
any Subsidiary, that could reasonably be expected to give rise to an
Environmental Claim against or to liability (other than in an immaterial
respect) of any Borrower or any Subsidiary under any Environmental Laws or
Environmental Permits.
|
|
18.9
|
ERISA
|
|
|
(a)
|
As
of the date of this Agreement, neither an Obligor nor any ERISA Affiliate
maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified in Schedule 9 (ERISA
Plans).
|
|
|
(b)
|
Each
Employee Benefit Plan is in compliance in form and operation with its
terms and with ERISA and the Code (including Code provisions compliance
with which is necessary for any intended favourable tax treatment) and all
other Applicable laws, except where any failure to comply would not,
individually or in the aggregate, reasonably be expected to result in any
material liability of any Obligor or ERISA
Affiliate.
|
|
|
(c)
|
Each
Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such plan
has been determined by the Inland Revenue Service to be exempt under
Section 501(a) of the Code, taking into account all applicable tax
law changes (or has been submitted, or is within the remedial amendment
period for submitting, an application for such a determination from the
Internal Revenue Service), and nothing has occurred since the date of each
such determination that would reasonably be expected to adversely affect
such determination (or, in the case of a Employee Benefit Plan with no
determination, nothing has occurred that would materially adversely affect
the issuance of a favourable determination by the Internal Revenue Service
or otherwise materially adversely affect such
qualification).
|
|
|
(d)
|
No
liability has been incurred by any Obligor or any ERISA Affiliate which
remains unsatisfied for any taxes or penalties with respect to any
Employee Benefit Plan or any Multiemployer Plan except for a liability
that would not, individually or in the aggregate, reasonably be expected
to result in a material liability of such Obligor or ERISA
Affiliate.
|
82
|
|
(e)
|
Except
where the failure of any of the following representations to be correct in
all material respects would not, individually or in the aggregate,
reasonably be expected to result in a material liability of any Obligor or
any ERISA Affiliate, no Obligor or any ERISA Affiliate
has:
|
|
|
(i)
|
engaged
in a non-exempt prohibited transaction described in Section 406 of
ERISA or Section 4975 of the
Code;
|
|
|
(ii)
|
incurred
any liability to the PBGC which remains outstanding, or reasonably expects
to incur any such liability other than the payment of premiums and there
are no premium payments which are within the applicable time limits
prescribed by Applicable Law, due and
unpaid;
|
|
|
(iii)
|
failed
to make a required contribution or payment to a Multiemployer Plan within
the applicable time limits prescribed by Applicable Law;
or
|
|
|
(iv)
|
failed
to make a required instalment or other required payment under
Section 412 of the Code or Section 302 of
ERISA.
|
|
|
(f)
|
No
ERISA Termination Event, which individually or in the aggregate would
reasonably be expected to result in a material liability of any Obligor or
ERISA Affiliate has occurred or is reasonably expected to
occur.
|
|
|
(g)
|
Except
where the failure of any of the following representations to be correct in
all material respects would not, individually or in the aggregate,
reasonably be expected to result in a material liability of any Obligor or
any ERISA Affiliate, no proceeding, claim (other than a benefits claim in
the ordinary course), lawsuit and/or investigation is existing or, to the
best knowledge of the Borrower after due inquiry, threatened concerning or
involving any:
|
|
|
(i)
|
employee
welfare benefit plan (as defined in Section 3(1) of ERISA) currently
maintained or contributed to any Obligor or any ERISA
Affiliate;
|
|
|
(ii)
|
Pension
Plan; or
|
|
|
(iii)
|
Multiemployer
Plan.
|
|
|
(h)
|
There
exists no Unfunded Pension Liability with respect to any Pension Plan,
except for any such Unfunded Pension Liability that individually or
together with any other positive Unfunded Pension Liabilities with respect
to any Pension Plans, is not reasonably expected to result in a material
liability of any Obligor or ERISA
Affiliate.
|
|
|
(i)
|
If
each Obligor and each ERISA Affiliate were to withdraw in a complete
withdrawal from all Multiemployer Plans as of the date this assurance is
given or deemed given, the aggregate withdrawal liability that would be
incurred would not reasonably be expected to result in a material
liability of any Obligor or ERISA
Affiliate.
|
83
|
|
(j)
|
No
Pension Plan which is subject to Section 412 of the Code or
Section 302 of 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 304 of ERISA. No Obligor or ERISA Affiliate
has ceased operations at a facility so as to become subject to the
provisions of Section 4068(a) of ERISA, withdrawn as a substantial
employer so as to become subject to the provisions of Section 4063 of
ERISA or ceased making contributions to any Pension Plan subject to
Section 4064(a) of ERISA to which it made
contributions. No Lien imposed under the Code or ERISA on the
assets of any Obligor or any ERISA Affiliate exists or is likely to arise
on account of any Pension Plan. No Obligor or ERISA Affiliate
has any liability under Section 4069 or 4212(c) of
ERISA.
|
|
18.10
|
Margin
Stock
|
|
|
(a)
|
Neither
the Borrower nor any Subsidiary of it is engaged principally or as one of
its activities 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 the Federal Reserve
System).
|
|
|
(b)
|
No
part of the proceeds of the Loans will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of such Board of
Governors.
|
|
18.11
|
Government
Regulation
|
Neither
the Borrower nor any Subsidiary is an “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, as
amended) and neither the Borrower nor any Subsidiary is, or after giving effect
to any Utilisation will be, subject to regulation under the Interstate Commerce
Act, as amended, or any other Applicable Law which limits its ability to incur
or consummate the transactions contemplated under this Agreement.
|
18.12
|
Material
Contracts
|
|
|
(a)
|
Schedule
12 (Material
Contracts) contains a complete and accurate list of all Material
Contracts of the Borrower and its Subsidiaries in effect as of the date of
this Agreement.
|
|
|
(b)
|
Other
than as set out in Schedule 12 (Material Contracts),
each such Material Contract is, and after giving effect to the
consummation of the transactions contemplated by the Finance Documents
will be, in full force and effect in accordance with the terms
thereof.
|
|
|
(c)
|
The
Borrower and its Subsidiaries have delivered to the COFACE Agent a true
and complete copy of each Material Contract required to be listed on
Schedule 12 (Material
Contracts) (including all amendments with respect
thereto).
|
84
|
|
(d)
|
Neither
the Borrower nor any Subsidiary (nor, to the knowledge of the Borrower,
any other party thereto) is in breach of or in default under any Material
Contract in any material respect.
|
|
18.13
|
Employee
Relations
|
|
|
(a)
|
Each
of the Borrower and its Subsidiaries has a work force in place adequate to
conduct its business as currently conducted and is not, as of the date of
this Agreement, party to any collective bargaining agreement nor has any
labour union been recognised as the representative of its employees except
as set out in Schedule 13 (Labour and Collective
Bargaining Agreements).
|
|
|
(b)
|
The
Borrower knows of no pending, threatened or contemplated strikes, work
stoppage or other collective labour disputes involving its employees or
those of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
|
|
18.14
|
Burdensome
Provisions
|
No
Subsidiary is party to any agreement or instrument or otherwise subject to any
restriction or encumbrance that restricts or limits its ability to make dividend
payments or other distributions in respect of its Capital Stock to the Borrower
or any Subsidiary or to transfer any of its assets or properties to the Borrower
or any other Subsidiary in each case other than existing under or by reason of
the Finance Documents or Applicable Law.
|
18.15
|
Financial
Statements
|
|
|
(a)
|
The
audited and unaudited financial statements delivered pursuant to Schedule
2 (Conditions
Precedent) are complete and correct and fairly present in all
material respects on a Consolidated basis the assets, liabilities and
financial position of the Borrower and its Subsidiaries as at such dates,
and the results of the operations and changes of financial position for
the periods that ended (other than the absence of footnotes and customary
year-end adjustments for unaudited financial
statements).
|
|
|
(b)
|
All
such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with
GAAP.
|
|
|
(c)
|
Such
financial statements show all material indebtedness and other material
liabilities, direct or contingent, of the Borrower and its Subsidiaries as
of the dates thereof, including material liabilities for taxes, material
commitments, and Financial Indebtedness, in each case, to the extent
required to be disclosed under
GAAP.
|
|
18.16
|
No Material Adverse
Change
|
Since 11
May 2009, there has been no material adverse change in the properties, business,
operations, prospects or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole and no event has occurred or condition arisen
that could reasonably be expected to have a Material Adverse
Effect.
85
|
18.17
|
Solvency
|
As of the
date of this Agreement and after giving effect to each Loan, each Obligor will
be Solvent.
|
18.18
|
Titles to
Properties
|
Each of
the Borrower and its Subsidiaries has such title to the real property owned or
leased by it as necessary to the conduct of its business as currently conducted
and valid and legal title to all of its personal property and assets, including,
but not limited to, those reflected on the Consolidated balance sheets of the
Borrower and its Subsidiaries delivered pursuant to Schedule 2 (Conditions Precedent), except
those which have been disposed of by the Borrower or its Subsidiaries subsequent
to the dates of such balance sheets which dispositions have been in the ordinary
course of trading or as otherwise expressly permitted under this
Agreement.
|
18.19
|
Insurance
|
The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as required by this
Agreement.
|
18.20
|
Liens
|
From
Financial Close,
|
|
(a)
|
none
of the properties and assets of the Borrower or any Subsidiary thereof is
subject to any Lien, except Permitted Liens;
and
|
|
|
(b)
|
neither
the Borrower nor any Subsidiary thereof has signed any financing statement
or any security agreement authorising any secured party thereunder to file
any financing statements, except to perfect Permitted
Liens.
|
|
18.21
|
Financial Indebtedness and
Guarantee Obligations
|
|
|
(a)
|
Schedule
14 (Financial
Indebtedness and Guarantee Obligations) is a complete and correct
listing of all Financial Indebtedness and Guarantee Obligations of the
Borrower and its Subsidiaries as of the date of this Agreement in excess
of one million Dollars
(US$1,000,000).
|
|
|
(b)
|
As
of the date of this Agreement, the amount of all Financial Indebtedness
and Guarantee Obligations of the Borrower and its Subsidiaries (and not
set out in Schedule 14 (Financial Indebtedness and
Guarantee Obligations) is no greater than one million Dollars
(US$1,000,000).
|
|
|
(c)
|
The
Borrower and its Subsidiaries have performed and are in compliance with
all of the material terms of such Financial Indebtedness and Guarantee
Obligations and all instruments and agreements relating thereto, and no
default or event of default, or event or condition which with notice or
lapse of time or both would constitute such a default or event of default
on the part of the Borrower or any of its Subsidiaries exists with respect
to any such Financial Indebtedness or Guarantee
Obligations.
|
86
|
18.22
|
Communication
Licences
|
|
|
(a)
|
Schedule
14 (Communication
Licences) accurately and completely lists, as of the date of this
Agreement, for the Borrower and each of its Subsidiaries, all Material
Communications Licences (and the expiration dates thereof) granted or
assigned to the Borrower or any Subsidiary, including, without limitation
for:
|
|
|
(i)
|
each
Satellite owned by the Borrower or any of its Subsidiaries, all space
station licences or authorisations, including placement on the FCC’s
“Permitted Space Station
List” for operation of Satellites with C-band links issued or
granted by the FCC to the Borrower or any of its Subsidiaries;
and
|
|
|
(ii)
|
for
each Earth Station of the Borrower and its
Subsidiaries.
|
|
|
(b)
|
The
Communications Licences set out in Schedule 14 (Communication Licences)
include all material authorisations, licences and permits issued by the
FCC or any other Governmental Authority that are required or necessary for
the operation and the conduct of the business of the Borrower and its
Subsidiaries, as now conducted. Each Communications Licence is
expected to be renewed and the Borrower knows of no reason why such
Communications Licence would not be renewed. The Borrower and
its Subsidiaries have filed all material applications with the FCC
necessary for the Launch and operation of the Borrower’s second-generation
satellite constellation and the Borrower is not aware of any reason why
such applications should not be
granted.
|
|
|
(c)
|
Each
Communications Licence set out in Schedule 14 (Communication Licences)
is issued in the name of the Subsidiary indicated on such
schedule.
|
|
|
(d)
|
Each
Material Communications Licence is in full force and
effect.
|
|
|
(e)
|
The
Borrower has no knowledge of any condition imposed by the FCC or any other
Governmental Authority as part of any Communications Licence which is
neither set forth on the face thereof as issued by the FCC or any other
Governmental Authority nor contained in the rules and regulations of the
FCC or any other Governmental Authority applicable generally to
telecommunications activities of the type, nature, class or location of
the activities in question.
|
|
|
(f)
|
Each
applicable location of the Borrower or any of its Subsidiaries has been
and is being operated in all material respects in accordance with the
terms and conditions of the Communications Licence applicable to it and
Applicable Law, including but not limited to the Communications Act and
the rules and regulations issues
thereunder.
|
|
|
(g)
|
No
proceedings are pending or, to the Borrower’s knowledge are, threatened
which may result in the loss, revocation, modification, non-renewal,
suspension or termination of any Communications Licence, the issuance of
any cease and desist order or the imposition of any fines, forfeitures or
other administrative actions by the FCC or any other Governmental
Authority with respect to any operations of the Borrower and its
Subsidiaries, which in any case could reasonably be expected to have a
Material Adverse Effect.
|
87
|
18.23
|
Satellites
|
|
|
(a)
|
All
Satellites are owned by the Borrower or a Subsidiary that is an
Obligor.
|
|
|
(b)
|
Schedule
16 (Satellites)
accurately and completely lists as of the date of this Agreement, the
flight model number of each of the Satellites owned by the Borrower and
its Subsidiaries, and for each Satellite whether it is operational
in-orbit or spare in-orbit.
|
|
18.24
|
Delay in Construction / Launch
Slot
|
As of the
date of this Agreement, the Borrower is not aware:
|
|
(a)
|
of
any delay which has a duration exceeding three (3) Months, to the
construction and scheduled delivery dates of the Satellites under the
Satellite Construction Contract (as delivered pursuant to Schedule 2
(Conditions
Precedent); and
|
|
|
(b)
|
of
any event which could reasonably be expected to result in the last Launch
occurring later than the fourth fiscal quarter of
2010.
|
|
18.25
|
Pari Passu
Ranking
|
Each
Obligor’s payment obligations under the Finance Documents rank at least pari passu with the claims of
all its unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
|
18.26
|
OFAC
|
|
|
(a)
|
None
of the Borrower, any Subsidiary of the Borrower or any Affiliate of the
Borrower:
|
|
|
(i)
|
is
a Sanctioned Person;
|
|
|
(ii)
|
has
more than ten per cent. (10%) of
its assets in Sanctioned Entities;
or
|
|
|
(iii)
|
derives
more than ten per cent. (10%) of
its operating income from investments in, or transactions with Sanctioned
Persons or Sanctioned Entities.
|
|
|
(b)
|
The
proceeds of any Loan will not be used and have not been used to fund any
operations in, finance any investments or activities in, or make any
payments to, a Sanctioned Person or a Sanctioned
Entity.
|
|
18.27
|
Governing Law and
Enforcement
|
|
|
(a)
|
Subject
to the Reservations, the choice of governing law of the Finance Documents
will be recognised and enforced in its jurisdiction of
incorporation.
|
88
|
|
(b)
|
Subject
to the Reservations, any judgment obtained in relation to a Finance
Document in the jurisdiction of the governing law of that Finance Document
will be recognised and enforced in its jurisdiction of
incorporation.
|
|
18.28
|
No Filing or Stamp
Taxes
|
Under:
|
|
(a)
|
the
laws of the Borrower’s or any of its Subsidiaries jurisdiction of
incorporation; and
|
|
|
(b)
|
the
federal laws of the
United States,
|
it is not
necessary that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp, registration,
notarial or similar Taxes or fees be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents other
than:
|
|
(i)
|
delivery
of proper financing statements (Form UCC-1 or such other financing
statements or similar notices as shall be required by Applicable Law)
fully executed for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary to perfect a Lien
purported to be created by a Security Document;
and
|
|
|
(ii)
|
any
recording with the United States Patent and Trademark Office and/or
Copyright Office to perfect the Liens on intellectual property created by
the Collateral Agreement,
|
which
registrations, filings and fees will be made and paid promptly after the date of
the relevant Finance Document.
|
18.29
|
Deduction of
Tax
|
It is not
required to make any deduction for or on account of Tax from any payment it may
make under any Finance Document.
|
18.30
|
No
Default
|
|
|
(a)
|
No
Event of Default and, on the date of this Agreement, no Default is
continuing or is reasonably likely to result from the making of any Loan
or the entry into, the performance of, or any transaction contemplated by,
any Transaction Document.
|
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes (or, with the
expiry of a grace period, the giving of notice, the making of any
determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under the
Transaction Documents, which has not been waived by the relevant parties
hereto.
|
89
|
|
(c)
|
No
other event or circumstance is outstanding which constitutes (or, with the
expiry of a grace period, the giving of notice, the making of any
determination or any combination of any of the foregoing, would
constitute) a default or termination event (however described) under any
other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or any of its Subsidiaries) assets are
subject which has or is reasonably likely to have a Material Adverse
Effect.
|
|
18.31
|
No Misleading
Information
|
|
|
(a)
|
All
factual information provided in writing by it to the Lenders was true,
complete and accurate in all material respects to the best of its
knowledge and belief as at the date it was provided or as at the date (if
any) at which it is stated.
|
|
|
(b)
|
All
financial projections provided by it have been prepared on the basis of
recent historical information and on the basis of reasonable assumptions
(in the case of projections made by third parties, to the best of its
knowledge and belief).
|
|
|
(c)
|
To
the best of its knowledge and belief, no material information has been
given or withheld by it that results in any information provided to the
Lenders by it being incomplete, untrue or misleading in any material
respect.
|
|
18.32
|
Group Structure
Chart
|
The Group
Structure Chart set out at Schedule 23 (Group Structure Chart) is
true, complete and accurate in all material respects.
|
18.33
|
No
Immunity
|
None of
the members of the Group nor any of its or their assets is entitled to immunity
from suit, execution, attachment or other legal process.
|
18.34
|
Tax Returns and
Payments
|
|
|
(a)
|
Each
of the Borrower and its Subsidiaries has timely filed with the appropriate
taxing authority, all returns, statements, forms and reports for taxes
(the “Returns”)
required to be filed by or with respect to the income, properties or
operations of the Borrower and/or any of its
Subsidiaries.
|
|
|
(b)
|
The
Returns accurately reflect in all material respects all liability for
taxes of the Borrower and its Subsidiaries as a whole for the periods
covered thereby.
|
|
|
(c)
|
The
Borrower and each of its Subsidiaries have paid all taxes payable by them
other than those contested in good faith and adequately disclosed and for
which adequate reserves have been established in accordance with generally
accepted accounting principles.
|
|
|
(d)
|
There
is no action, suit, proceeding, investigation, audit, or claim now pending
or, to the best knowledge of the Borrower or any of its Subsidiaries,
threatened by any authority regarding any taxes relating to the Borrower
or any of its Subsidiaries which, if adversely determined, could
reasonably be expected to have a Material Adverse
Effect.
|
90
|
|
(e)
|
Neither
the Borrower nor any of its Subsidiaries has entered into an agreement or
waiver or been requested to enter into an agreement or waiver extending
any statute of limitations relating to the payment or collection of taxes
of the Borrower or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods
of the Borrower or any of its Subsidiaries not to be subject to the
normally applicable statute of
limitations.
|
|
18.35
|
Commercial
Contracts
|
As of the
date of this Agreement, the Borrower has not exercised:
|
|
(a)
|
the
option to order from the Supplier up to eighteen (18) additional recurring
Spacecraft (as such term is defined in the Satellite Construction
Contract) pursuant to Article 29(B) (Options) of the
Satellite Construction Contract; or
|
|
|
(b)
|
the
Optional 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 by the Borrower by reference to the facts and
circumstances then existing on:
|
|
(a)
|
the
date of each Utilisation Request;
|
|
|
(b)
|
each
Utilisation Date; and
|
|
|
(c)
|
the
first day of each Interest Period.
|
|
19.
|
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 19 (Information Undertakings)
remain in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force. The Borrower will furnish, or cause to be furnished, to the
COFACE Agent the information required by this Clause 19 (Information Undertakings) in
sufficient copies for all the Lenders.
|
19.1
|
Quarterly Financial
Statements
|
As soon
as practicable and in any event within forty five (45) days after the end
of each of the first three (3) fiscal quarters 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 of any required public filing is earlier, no
later than the date that is the fifth Business Day immediately following the
date of any required public filing thereof after giving effect to any extensions
granted with respect to such date):
|
|
(a)
|
Form 10-Q;
|
|
|
(b)
|
an
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries
as of the close of such fiscal
quarter;
|
91
|
|
(c)
|
the
notes (if any) relating to any of the financial statements delivered under
this Clause 19.1;
|
|
|
(d)
|
unaudited
Consolidated statements of income, retained earnings and cash
flows;
|
|
|
(e)
|
a
report with respect to the Borrower’s key performance indicators in
substantially the same form as Schedule 19 (Key Performance
Indicators); and
|
|
|
(f)
|
a
report containing management’s discussion and analysis of such financial
statements for the fiscal quarter then ended and that portion of the
Fiscal Year then ended,
|
all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the corresponding period in the preceding Fiscal Year and
prepared by the Borrower in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operations of
any change in the application of accounting principles and practices during the
period, and certified by the chief financial officer of the Borrower to present
fairly in all material respects the financial condition of the Borrower and its
Subsidiaries on a Consolidated basis as of their respective dates and the
results of operations of the Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments.
|
19.2
|
Annual Financial
Statements
|
|
|
(a)
|
As
soon as practicable and in any event within ninety (90) days after
the end of 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 the date of any required public filing thereof after
giving effect to any extensions granted with respect to such
date):
|
|
|
(i)
|
Form 10-K;
|
|
|
(ii)
|
an
audited Consolidated balance sheet of the Borrower and its Subsidiaries as
of the close of such Fiscal Year;
|
|
|
(iii)
|
the
notes (if any) relating to any of the financial statements delivered under
this Clause 19.2;
|
|
|
(iv)
|
audited
Consolidated statements of income, retained earnings and cash flows;
and
|
|
|
(v)
|
a
report containing management’s discussion and analysis of such financial
statements for the Fiscal Year then
ended,
|
all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the preceding Fiscal Year and prepared in accordance with
GAAP and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of accounting
principles and practices during the year.
92
|
|
(b)
|
Such
annual financial statements shall be audited by the independent certified
public accounting firm separately notified to the COFACE Agent prior to
the date of this Agreement or such other firm notified to the COFACE Agent
(and acceptable to the COFACE Agent), and accompanied by a report thereon
by such certified public accountants that is not qualified with respect to
scope limitations imposed by the Borrower or any of its Subsidiaries or
with respect to accounting principles followed by the Borrower or any of
its Subsidiaries not in accordance with
GAAP.
|
|
19.3
|
Annual Business Plan and
Financial Projections
|
As soon
as practicable and in any event within fifteen (15) days after the
beginning of each Fiscal Year during the term of this Agreement, a business plan
of the Borrower and its Subsidiaries for the ensuing four (4) fiscal
quarters, such plan to be prepared in accordance with GAAP and to include, on a
quarterly basis, the following:
|
|
(a)
|
information
relating to the amounts outstanding under the Convertible
Notes;
|
|
|
(b)
|
an
operating and capital budget in respect of the next three (3)
succeeding Fiscal Years;
|
|
|
(c)
|
a
projected income statement;
|
|
|
(d)
|
a
statement of cash flows on a three (3) year projected basis
(including, calculations (in reasonable detail) demonstrating compliance
with each of the financial covenants set out in Clause 20 (Financial Covenants))
and balance sheet; and
|
|
|
(e)
|
a
report setting forth management’s operating and financial assumptions
underlying such projections,
|
accompanied
by a certificate from a Responsible Officer of the Borrower to the effect that,
to the best of such officer’s knowledge, such projections are estimates made in
good faith (based on reasonable assumptions) of the financial condition and
operations of the Borrower and its Subsidiaries for such four (4) fiscal
quarter period and in relation to the operating and capital budget, in respect
of the next three (3) succeeding Fiscal Years.
|
19.4
|
Compliance
Certificate
|
At each
time:
|
|
(a)
|
financial
statements are delivered pursuant to Clause 19.1 (Quarterly Financial
Statements) or Clause 19.2 (Annual Financial
Statements);
|
|
|
(b)
|
the
information and other documentation is delivered pursuant to
Clause 19.3 (Annual
Business Plan and Financial Projections);
and
|
|
|
(c)
|
at
such other times as the COFACE Agent shall reasonably
request,
|
93
a
Compliance Certificate signed by a Responsible Officer, confirming compliance by
the Borrower with each of the financial covenants set out in Clause 20
(Financial Covenants)
together with an Adjusted Consolidated EBITDA Reconciliation for the fiscal
period covered by such financial statements or information (as the case may
be).
|
19.5
|
Other
Reports
|
|
|
(a)
|
Upon
request by the COFACE Agent, copies of all relevant public documents
required by its independent public accountants in connection with their
auditing function, including, without limitation, any management report
and any management responses
thereto.
|
|
|
(b)
|
No
less than annually, and at any time upon the reasonable request of the
COFACE Agent, a Satellite health report prepared by the Borrower and
certified by a Responsible Officer setting forth the operational status of
each Satellite (other than Satellites yet to be launched) based on
reasonable assumptions of the Borrower made in good faith and including
such information with respect to the projected solar array life based on
the total Satellite power requirements, projected battery life based on
total Satellite power requirements, projected Satellite life, information
concerning the availability of spare Satellites and such other information
pertinent to the operation of such Satellite as the COFACE Agent may
reasonably request, it being understood that to the extent that any such
Satellite health report contains any forward looking statements, estimates
or projections, such statements, estimates or projections are subject to
significant uncertainties and contingencies, many of which are beyond the
Borrower’s control, and no assurance can be given that such forward
looking statements, estimates or projections will be realised, provided that nothing
in this paragraph (b) shall require the Borrower to delivery any
information to any Lender to the extent delivery of such information is
restricted by applicable law or
regulation.
|
|
|
(c)
|
No
less than quarterly, a Satellite health report prepared by the Borrower
and certified by a Responsible Officer including the
following:
|
|
|
(i)
|
details
of the operational status of each Satellite (other than Satellites yet to
be launched) based on reasonable assumptions of the Borrower made in good
faith and in substantially the same form contained in Schedule 30 (Form of Quarterly Health
Report); and
|
|
|
(ii)
|
a
letter providing details of any material or unusual events that have
occurred with respect to the Satellites since the delivery to the COFACE
Agent of the last quarterly report.
|
|
|
(d)
|
Such
other information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries as the COFACE Agent
or any Lender may reasonably
request.
|
94
|
19.6
|
Notice of Litigation and Other
Matters
|
Promptly
(but in no event later than ten (10) Business Days after any Responsible
Officer of the Borrower obtains knowledge thereof) written notice
of:
|
|
(a)
|
all
documents dispatched by the Borrower to all of its stockholders (or any
class thereof) or its creditors generally at the same time as they are
dispatched;
|
|
|
(b)
|
the
commencement of all proceedings and investigations by or before any
Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses that
if adversely determined could reasonably be expected to result in a
Material Adverse Effect;
|
|
|
(c)
|
any
notice of any violation received by the Borrower or any Subsidiary thereof
from any Governmental Authority including, without
limitation:
|
|
|
(i)
|
any
notice of violation of any Environmental Law and the details of any
environmental claim, litigation, arbitration or administrative proceedings
which are current, threatened or pending against any member of the Group;
and
|
|
|
(ii)
|
any
other notice of violation which in each case could reasonably be expected
to have a Material Adverse Effect;
|
|
|
(d)
|
any
labour controversy that has resulted in a strike or other work action
against the Borrower or any Subsidiary thereof which in each case could
reasonably be expected to have a Material Adverse
Effect;
|
|
|
(e)
|
any
attachment, judgment, lien, levy or order exceeding one million Dollars
(US$1,000,000) that has been assessed against the Borrower or any
Subsidiary thereof;
|
|
|
(f)
|
any
claim for force majeure
(howsoever described) by a party under a Commercial
Contract;
|
|
|
(g)
|
details
of:
|
|
|
(i)
|
any
delay which has a duration exceeding three (3) Months, to the
construction and scheduled delivery dates of the Satellites under the
Satellite Construction Contract (as delivered pursuant to Schedule 2
(Conditions
Precedent);
|
|
|
(ii)
|
any
event which could reasonably be expected to result in the last Launch
occurring later than the fourth fiscal quarter of 2010;
and
|
|
|
(iii)
|
suspension,
interruption, cancellation or termination of a Commercial
Contract;
|
|
|
(h)
|
any
amendments or modifications to a Commercial Contract, together with a copy
of such amendment;
|
95
|
|
(i)
|
any
Default or Event of Default;
|
|
|
(j)
|
any
event which constitutes or which with the passage of time or giving of
notice or both would constitute a default or event of default under any
Material Contract to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any Subsidiary thereof or any of their
respective properties may be bound which could reasonably be expected to
have a Material Adverse Effect;
|
|
|
(k)
|
any
unfavourable determination letter from the US Internal Revenue Service
regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy
thereof);
|
|
|
(l)
|
a
copy of each Internal Revenue Service Form 5500 (including the
Schedule B or such other schedule as contains actuarial information)
filed in respect of a Pension Plan with Unfunded Pension
Liabilities;
|
|
|
(m)
|
any
Obligor or ERISA Affiliate obtaining knowledge or a reason to know that
any ERISA Termination Event has occurred or is reasonably expected to
occur, a certificate of any Responsible Officer of the Borrower describing
such ERISA Termination Event and the action, if any, proposed to be taken
with respect to such ERISA Termination Event and a copy of any notice
filed with the PBGC or the Internal Revenue Service pertaining to such
ERISA termination Event and any notices received by such Obligor or ERISA
Affiliate from the PBGC, any other governmental agency or any
Multiemployer Plan sponsor with respect thereto; provided that in the case
of ERISA Termination Events under paragraph (c) of the definition
thereof, in no event shall notice be given later than the occurrence of
the ERISA Termination Event;
|
|
|
(n)
|
any
Obligor or ERISA Affiliate obtaining knowledge or a reason to know
of:
|
|
|
(i)
|
a
material increase in Unfunded Pension Liabilities (taking into account
only Pension Plans with positive Unfunded Pension Liabilities) since the
date the representations hereunder are given or deemed given, or from any
prior notice, as applicable;
|
|
|
(ii)
|
the
existence of potential withdrawal liability under Section 4201 of
ERISA, if each Obligor and ERISA Affiliate were to withdraw completely
from any and all Multiemployer
Plans;
|
|
|
(iii)
|
the
adoption of, or the commencement of contributions to, any Pension Plan or
Multiemployer Plan by any Obligor or ERISA Affiliate,
or
|
|
|
(iv)
|
the
adoption or amendment of any Pension Plan which results in a material
increase in contribution obligations of any Obligor or any ERISA
Affiliate, a detailed written description thereof from any Responsible
Officer of the Borrower; and
|
96
|
|
(o)
|
if,
at any time after the date of this Agreement, any Obligor or any ERISA
Affiliate maintains, or contributes to (or incurs an obligation to
contribute to), an Employee Benefit Plan or Multiemployer Plan which is
not set forth in Schedule 9 (ERISA Plans), then the
Borrower shall deliver to the COFACE Agent an updated Schedule 9 as soon
as practicable, and in any event within ten (10) days after such
Obligor or ERISA Affiliate maintains or contributes (or incurs an
obligation to contribute) thereto.
|
|
19.7
|
Notices Concerning
Communications Licences
|
Promptly
(but in no event later than ten (10) Business Days after any Responsible
Officer of the Borrower obtains knowledge thereof) written notice
of:
|
|
(a)
|
(i)
any citation, notice of violation or order to show cause issued by the FCC
or any Governmental Authority with respect to any Material Communications
Licence; (ii) if applicable, a copy of any notice or application by
the Borrower requesting authority to or notifying the FCC of its intent to
cease telecommunications operations for any period in excess of ten
(10) days; or (iii) notice of any other action, proceeding or
other dispute, which, if adversely determined, could reasonably be
expected to result in the loss or revocation of any Material
Communications Licence; and
|
|
|
(b)
|
any
lapse, loss, modification, suspension, termination or relinquishment of
any Material Communications Licence, permit or other authorisation from
the FCC or other Governmental Authority held by the Borrower or any
Subsidiary thereof or any failure of the FCC or other Governmental
Authority to renew or extend any such Material Communications Licence,
permit or other authorisation for the usual period thereof and of any
complaint against the Borrower or any of its Subsidiaries or other matter
filed with or communicated to the FCC or other Governmental
Authority.
|
|
19.8
|
Convertible
Notes
|
The
Borrower shall:
|
|
(a)
|
provide
to the COFACE Agent upon its request information relating to the amounts
outstanding under the Convertible Notes;
and
|
|
|
(b)
|
promptly
on request, supply to the COFACE Agent such further information regarding
the Convertible Notes as any Finance Party through the COFACE Agent may
reasonably request.
|
|
19.9
|
Final In-Orbit
Acceptance
|
The
Borrower shall:
|
|
(a)
|
provide
to the COFACE Agent a certificate signed by 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)
|
promptly
on request, supply to the COFACE Agent such further information regarding
Final In-Orbit Acceptance as any Finance Party through the COFACE Agent
may reasonably request.
|
97
|
19.10
|
Individual In-Orbit
Acceptance
|
The
Borrower shall provide to the COFACE Agent a certificate signed by a Responsible
Officer confirming that, in respect of the relevant Satellite:
|
|
(a)
|
the
testing of such Satellite has been completed and the Satellite Performance
Criteria has been successfully met in respect of the relevant Satellite,
promptly after the completion of such tests;
and
|
|
|
(b)
|
Individual
In-Orbit Acceptance has occurred not later than five (5) days after
achieving Individual In-Orbit
Acceptance.
|
|
19.11
|
Equity Cure
Contribution
|
The
Borrower shall promptly inform the COFACE Agent when an Equity Cure Contribution
is to be made (including the details of any Equity Issuance or Subordinated
Indebtedness being applied for such purpose).
|
19.12
|
Use of
Websites
|
|
|
(a)
|
The
Borrower may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders ( the “Website Lenders”) who
accept this method of communication by posting this information onto an
electronic website designated by the Borrower and the COFACE Agent (the
“Designated
Website”) if:
|
|
|
(i)
|
the
COFACE Agent expressly agrees (after consultation with each of the
Lenders) that it will accept communication of the information by this
method;
|
|
|
(ii)
|
both
the Borrower and the COFACE Agent are aware of the address of and any
relevant password specifications for the Designated Website;
and
|
|
|
(iii)
|
the
information is in a format previously agreed between the Borrower and the
COFACE Agent.
|
If any
Lender (a “Paper Form
Lender”) does not agree to the delivery of information electronically
then the COFACE Agent shall notify the Borrower accordingly and the Borrower
shall supply the information to the COFACE Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Borrower shall
supply the COFACE Agent with at least one (1) copy in paper form of any
information required to be provided by it.
|
|
(b)
|
The
COFACE Agent shall supply each Website Lender with the address of and any
relevant password specifications for the Designated Website following
designation of that website by the Borrower and the COFACE
Agent.
|
98
|
|
(c)
|
The
Borrower shall promptly upon becoming aware of its occurrence notify the
COFACE Agent if:
|
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
|
(iii)
|
any
new information which is required to be provided under this Agreement is
posted onto the Designated Website;
|
|
|
(iv)
|
any
existing information which has been provided under this Agreement and
posted onto the Designated Website is amended;
or
|
|
|
(v)
|
the
Borrower becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar
software.
|
If the
Borrower notifies the COFACE Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the Borrower
under this Agreement after the date of that notice shall be supplied in paper
form unless and until the COFACE Agent and each Website Lender is satisfied that
the circumstances giving rise to the notification are no longer
continuing.
|
|
(d)
|
Any
Website Lender may request, through the COFACE Agent, one (1) paper
copy of any information required to be provided under this Agreement which
is posted onto the Designated Website. The Borrower shall
comply with any such request within ten (10) Business
Days.
|
|
19.13
|
“Know your
Customer”
Checks
|
|
|
(a)
|
If:
|
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any Applicable Law made after the date of this
Agreement;
|
|
|
(ii)
|
any
change in the status of any Obligor after the date of this Agreement;
or
|
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
|
obliges
the COFACE 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 necessary
information is not already available to it, the Borrower shall procure that each
Obligor shall promptly upon the request of the COFACE Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the COFACE Agent (for itself or on behalf of any Lender)
or any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender) in order
for the COFACE Agent, such Lender or, in the case of the event described in
paragraph (iii) above, any prospective new Lender to carry out and be
satisfied it has complied with all necessary “know your customer” or other
similar checks under all Applicable Laws pursuant to the transactions
contemplated in the Finance Documents.
99
|
|
(b)
|
Each
Lender shall promptly upon the request of the COFACE Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the COFACE Agent (for itself) in order for the
COFACE Agent to carry out and be satisfied it has complied with all
necessary “know your
customer” or other similar checks under all Applicable Laws
pursuant to the transactions contemplated in the Finance
Documents.
|
|
19.14
|
Last
Launch
|
The
Borrower shall:
|
|
(a)
|
provide
to the COFACE Agent a certificate signed by a Responsible Officer
confirming the date on which the last Launch has occurred (such
certificate to be in form and substance satisfactory to the COFACE Agent)
within five (5) Business Days following last Launch;
and
|
|
|
(b)
|
promptly
on request, supply to the COFACE Agent such further information regarding
last Launch as any Finance Party through the COFACE Agent may reasonably
request.
|
|
20.
|
FINANCIAL
COVENANTS
|
|
20.1
|
Maximum Covenant Capital
Expenditures
|
The
Borrower and its Subsidiaries on a Consolidated basis will not permit the
aggregate amount of all Covenant Capital Expenditures to exceed the amount
agreed between the Borrower and the COFACE Agent set forth below in the
following Fiscal Years:
|
2009
|
US$ | 391,000,000 | ||
|
2010
|
US$ | 234,000,000 |
provided that, if in any Fiscal Year
the Covenant Capital Expenditures referred to above are not met, any excess
amounts may be credited to permitted Covenant Capital Expenditures for the next
Fiscal Year.
|
20.2
|
Minimum
Liquidity
|
Following
the Contingent Equity Release Date, maintain a minimum Liquidity of five million
Dollars (US$5,000,000).
100
|
20.3
|
Adjusted Consolidated
EBITDA
|
The
Borrower shall ensure that the Adjusted Consolidated EBITDA in respect of any
Relevant Period (including (without double-counting) in the calculation of
Adjusted Consolidated EBITDA any Equity Cure Contribution made during such
period and the amount of any prior Equity Cure Contribution that has not been
required to be counted in the calculation of Adjusted Consolidated EBITDA to
enable the Borrower to achieve the amount set out in column 2 (Column 2 – Amount) for any
prior Relevant Period, provided that no part of any
Equity Cure Contribution may be included in the calculation of the Adjusted
Consolidated EBITDA in any subsequent Relevant Period if the proceeds of such
Equity Cure Contribution has been so taken into account in any such calculation
for any two (2) prior Relevant Periods) specified in column 1 (Column 1 – Relevant
Period) below shall not be less than the amount set out in column 2
(Column 2 –
Amount) below opposite that Relevant Period.
|
Column 1 - Relevant Period
|
Column 2 – Amount
|
|||
|
Relevant
Period commencing on 1 January 2009 and expiring 31 December
2009.
|
US$ | (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 Service Coverage
Ratio
|
The
Borrower shall ensure that the Debt Service Coverage Ratio in respect of any
Relevant Period (including (without double-counting) any Equity Cure
Contribution made in accordance with Clause 23.2(c) (Financial Covenants) provided that any Equity Cure
Contribution shall only be counted in the calculation of Liquidity for such
purpose) specified in column 1 (Column 1 – Relevant
Period) below shall not be less than the ratio set out in column 2
(Column 2 – Ratio)
below opposite that Relevant Period.
101
|
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
|
|
|
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
|
102
|
20.5
|
Net Debt to Adjusted
Consolidated EBITDA
|
The
Borrower shall ensure that the ratio of Net Debt to Adjusted Consolidated EBITDA
in respect of any Relevant Period (and calculated on the ending balance of the
Relevant Period (subject to Clause 23.2(c) (Financial Covenants) without
double-counting provided
that any Equity Cure Contribution shall only be counted in the
calculation of Liquidity for such purpose)) specified in column 1 (Column 1 – Relevant
Period) below shall not be greater than the ratio set out in
column 2 (Column 2 –
Ratio) below opposite 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
|
103
|
20.6
|
Financial
Testing
|
The
financial covenants set out in this Clause 20 shall be tested by reference
to the most recent set of financial statements delivered for the Relevant Period
pursuant to Clause 19 (Information
Undertakings).
|
21.
|
POSITIVE
UNDERTAKINGS
|
The
undertakings in this Clause 21 (Positive Undertakings) remain
in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force. The Borrower shall, and shall cause each of its Subsidiaries,
to comply with the undertakings contained in this Clause 21.
|
21.1
|
Compliance with
Laws
|
|
|
(a)
|
Observe
and remain in compliance in all material respects with all Applicable Laws
and maintain in full force and effect all Authorisations, in each case
applicable to the conduct of its business except where the failure to do
so could not reasonably be expected to have a Material Adverse
Effect.
|
|
|
(b)
|
Without
limiting the foregoing, the Borrower shall, and shall cause each of its
Subsidiaries to, comply in all material respects with all terms and
conditions of all Communications Licences and all federal, state and local
laws, all rules, regulations and administrative orders of the FCC, state
and local commissions or authorities, or any other Governmental Authority
that are applicable to the Borrower and its Subsidiaries or the
telecommunications operations thereof; provided that the
Borrower or any Subsidiary may dispute in good faith the applicability or
requirements of any such matter so long as such dispute could not
reasonably be expected to have a Material Adverse
Effect.
|
|
21.2
|
Environmental
Laws
|
In
addition to and without limiting the generality of Clause 21.1 (Compliance with
Laws):
|
|
(a)
|
comply
with, and use reasonable endeavours to ensure such compliance by all
tenants and sub-tenants with all applicable Environmental Laws and obtain,
comply with and maintain, and use reasonable endeavours to ensure that all
tenants and subtenants, obtain, comply with and maintain, any and all
Environmental Permits;
|
|
|
(b)
|
conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws;
and
|
104
|
|
(c)
|
defend,
indemnify and hold harmless the Finance Parties, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, judgments, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to the presence of Hazardous Materials, or
the violation of, non-compliance with or liability under any Environmental
Laws by the Borrower or any such Subsidiary, or any orders, requirements
or demands of Governmental 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 that any of the foregoing directly result from the
gross negligence or willful misconduct of the party seeking
indemnification therefor, as determined by a court of competent
jurisdiction by final non-appealable
judgment.
|
|
21.3
|
Compliance with
ERISA
|
In
addition to and without limiting the generality of Clause 21.1 (Compliance with Laws) except
where the failure to comply could not, individually or in aggregate, reasonably
be expected to have a Material Adverse Effect:
|
|
(a)
|
comply
with all material applicable provisions of ERISA and the Code (including
Code provisions compliance with which is necessary for any intended
favourable tax treatment) and the regulations and published
interpretations respectively thereunder with respect to all Employee
Benefit Plans;
|
|
|
(b)
|
not
take any action or fail to take action the result of which could be a
liability to the PBGC or to a Multiemployer
Plan;
|
|
|
(c)
|
not
participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the
Code;
|
|
|
(d)
|
operate
each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of
the Code or any liability to any qualified beneficiary as defined in Section 4980B of
the Code; and
|
|
|
(e)
|
furnish
to the COFACE Agent upon the COFACE Agent’s request such additional
information about any Employee Benefit Plan as may be reasonably requested
by the COFACE Agent.
|
|
21.4
|
Insurance
|
|
|
(a)
|
Maintain
insurance with insurance companies and/or underwriters rated by S&P or
AM Best’s Rating Agency at no lower than A- against such risks and in such
amounts as are:
|
|
|
(i)
|
maintained
in accordance with prudent business practice and corporate governance;
and
|
105
|
|
(ii)
|
as
may be required by Applicable Law with amounts and scope of coverage not
less than those maintained by the Borrower and its Subsidiaries as of the
date of this Agreement.
|
|
|
(b)
|
On
the date of this Agreement and from time to time thereafter the Borrower
shall deliver to the COFACE Agent upon its request information in
reasonable detail as to the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, the dates
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 obtain any insurance against the
risk of loss of any in-orbit Satellites or against business interruption
risks in addition to or with a broader scope of coverage than is currently
maintained by the Borrower and its Subsidiaries as at the date of this
Agreement.
|
|
|
(c)
|
In
addition to, and without limiting the foregoing, the Borrower will, and
will cause each of its Subsidiaries to, maintain insurance with respect to
the Satellites as follows:
|
|
|
(i)
|
Property All Risks
Insurance
|
The
Borrower will procure or will cause the Supplier to procure at its own expense
and maintain in full force and effect, at all times prior to the Launch of any
Satellite purchased by the Borrower or any of its Subsidiaries pursuant to the
terms of the Satellite Construction Contract, Property All Risks Insurance upon
such terms and conditions satisfactory to the COFACE Agent and as are reasonably
commercially available and customary in the industry which shall cover any loss
of, or damage to, the Satellites and the Satellite and Launch specific ground
components, including all components thereof, at all times during the
manufacture, testing, storage and transportation of the Satellites and the
Satellite and Launch specific ground components up to the time of Launch of the
Satellites and until delivery to the Borrower of the Satellite and Launch
specific ground components.
In no
event shall the Borrower or the Supplier be required to maintain or procure
Property All Risks Insurance to insure risks that may be required to be insured
by, or that covers the same risk or period of coverage provided by the Supplier
as the Launch Insurance (as defined below). The Borrower shall cause
the Supplier to name COFACE, the COFACE Agent and the Lenders as additional
insured but only to the extent of those persons’ interests in such Satellites;
and
|
|
(ii)
|
Launch
Insurance
|
The
Borrower will obtain, maintain and keep in full force and effect with respect to
each Satellite that is to be launched, space risk insurance against loss of or
damage to the Satellite (including any loss or damage which may occur to a
Satellite during the period from Launch until Individual In-Orbit Acceptance)
such space risk insurance (hereinafter in this Clause 21.4 “Launch
Insurance”). Launch Insurance shall be bound no later than
three (3) Months prior to the then scheduled Launch date of such
Satellite.
106
The
Launch Insurance shall include in-orbit cover providing for:
|
|
(x)
|
in
the case of the first Launch of six (6) Satellites, a
six (6) Month stabilisation and performance test period for such
six (6) Satellites; and
|
|
|
(y)
|
in
the case of each Launch following the first successful Launch, a three
(3) Month stabilisation and performance test period for each
Satellite remaining to be launched for the first twenty-four (24)
Satellites,
|
Such
Launch Insurance shall be in accordance with terms commercially available and
reasonably acceptable to the COFACE Agent (acting on the instructions of the
Majority 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 termination for that
Satellite under the relevant Launch Insurance policy. The Launch
Insurance for each Satellite shall:
|
|
(A)
|
commence from
the time that is the earlier of (i) the time designated by the Launch
Services Provider during the launch sequence when the command to ignite is
intentionally sent to one of the motors of the Launch Vehicle (as such
term is defined in the Launch Services Contract) for the purpose of Launch
following a planned countdown; and (ii) the time that the cover with
respect to the relevant Satellite being launched expires under the
insurance procured by the Supplier;
|
|
|
(B)
|
be
denominated in Dollars for an amount not less than one hundred and ninety
million nine hundred thousand Dollars (US$190,900,000) until the date of
the first successful Launch, and thereafter, to be an amount equal to the
higher of (i) the replacement cost of a Satellite (including, the purchase
price, Launch and insurances) and (ii) one hundred and forty six million
five hundred eighty five thousand and five hundred Dollars
(US$146,585,500));
|
|
|
(C)
|
name
the applicable Obligor purchasing the Satellite as the named insured and
the Security Agent for and on behalf of the Lenders as additional insured
and first loss payee in accordance with the Loss Payee Clause up to the
amount specified in Clause 21.4(c)(ii)(B) and provide that payments
due thereunder shall be payable directly to the Security Agent 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 be applied 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 named insured and
paid to the Loss Payee; and
|
107
|
|
(D)
|
provide
that it will not be cancelled or reduced (other than a reduction from the
payment of a claim) or amended without notice to the COFACE
Agent. All such notices shall be sent by facsimile and e-mail
to the COFACE Agent by the insurers at the same time such notices are sent
to the Borrower and shall be effective as stated in such notices provided that, fifteen
(15) days’ advance written notice shall be given in the event of
notice of cancellation for non-payment of
premium.
|
The
Borrower shall submit evidence of cover satisfactory to the COFACE Agent (acting
in consultation with the Insurance Consultant), being either the broker’s issued
policy documentation cover note, binder or policy documents issued by the
relevant Insurer (the “Launch
Insurance Documentation”) to the COFACE Agent at least ninety
(90) days prior to the first scheduled Launch date or, upon written request
from the Borrower and subject to the approval of the COFACE Agent, such later
mutually agreed date based on prevailing market conditions.
The
Borrower shall obtain from its insurer providing the Launch Insurance waivers of
any subrogation rights against the Supplier (or its sub-contractors) and shall
provide evidence of such waivers to the COFACE Agent sixty (60) days prior
to the Launch of any Satellite and shall provide the COFACE Agent with a
certificate of such insurance coverage (including the percentage of risks given
to such insurer) at the COFACE Agent’s request.
|
|
(iii)
|
Third Party Liability
Insurance
|
The
Borrower shall:
|
|
(A)
|
cause
the Supplier to subscribe before Launch and/or maintain in full force and
effect a third party liability insurance for liabilities arising from
bodily injury and loss or damage to third party property (“Third Party Liability
Insurance”);
|
|
|
(B)
|
cause
the Launch Services Provider to subscribe for and maintain Third Party
Liability Insurance coverage for liabilities arising from bodily injury
and loss or damage to third party property caused by Satellites after
Launch in an amount on an annual basis of not less than an aggregate
amount equal to:
|
|
|
(aa)
|
sixty
million nine hundred and eighty thousand Euros (€60,980,000) in respect of
a Launch from the Kourou launch
site;
|
|
(bb)
|
one hundred million
Dollars (US$100,000,000) in respect of the risks covered under
Article 15.2.1(ii) of the Launch Services Contract, for Launches from
the Baїkonur launch site.
|
108
in each
case, per occurrence, naming COFACE, the COFACE Agent and the Lenders as
additional insured thereunder. In accordance with the Satellite
Construction Contract, the Borrower shall use its best efforts to cause the
Launch Services Provider to name the Supplier (and its sub-contractors) as
additional insureds under the Launch Services Provider’s Third Party Liability
Insurance; and
|
|
(C)
|
cause
the Launch Services Provider to submit a copy of the Third Party Liability
Insurance documentation to the COFACE Agent as soon as practicable and in
any event no less than thirty (30) days prior to the scheduled Launch
date for any Launch. Such insurance shall be in full force at
the Launch date (as of Intentional 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 Launch Vehicle (as such term is defined in
the Launch Services Contract), the Satellite(s) and/or their components
remain in orbit.
|
|
|
(d)
|
Each
insurance policy shall comply with the Lenders’ requirements set out in
Clause 21.4(e) below and shall be on reasonable terms and conditions
and with acceptable exclusions and a reasonable level of deductible
acceptable to the COFACE Agent (acting on the instructions of the Majority
Lenders).
|
|
|
(e)
|
General Insurance Provisions
and Requirements
|
The
Borrower shall:
|
|
(i)
|
provide,
or as appropriate, request the Supplier and/or the Launch Services
Provider to deliver to the COFACE Agent, promptly after issuance of each
relevant Insurance, certificate(s) of internationally recognised insurance
broker(s) usually involved in space risk insurance and approved by the
Lenders, confirming that:
|
|
|
(A)
|
the
Property All Risks Insurance, the Launch Insurance and the Third Party
Liability Insurance, as appropriate, are in full force and effect on the
date 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;
|
109
|
|
(D)
|
the
premia for the Property All Risks Insurance, Launch Insurance and the
Third Party Liability Insurances shall be payable by the Borrower, the
Supplier and the Launch Services Provider, as applicable, in accordance
with the terms of credit agreed for each such Insurance;
and
|
|
|
(E)
|
all
premia due at the date of such certificate have been paid in
full.
|
|
|
(ii)
|
use
reasonable efforts (having regard to the terms which are reasonably
commercially available in the insurance market) to obtain agreement to
incorporate in the Insurances the following provisions or provisions
substantially similar in content:
|
|
|
(A)
|
the
insurers, either directly or via the insurance broker, and the broker
shall also advise the COFACE Agent (by facsimile and by e-mail) of any
loss or of any default in the payment of any premium and of any event
other act or omission on the part of the Borrower, the Supplier and/or the
Launch Service Provider, as applicable, of which the broker or the
insurers have knowledge and which might result in the invalidation, the
lapse or the cancellation in whole or in part of such
Insurance;
|
|
|
(B)
|
the
COFACE Agent and/or the Lenders shall have the right (without any
obligation) to pay the insurance premia if the relevant party fails to or
delays in making any such payment within the time periods specified in the
relevant insurance policies. If any payment of the premia is
effected by the COFACE Agent and/or the Lenders, the Borrower shall on
demand reimburse the COFACE Agent and/or the Lenders the amount 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, the
COFACE Agent shall have the right to join the Borrower, the Supplier
and/or the Launch Services Provider (as applicable) in submitting a notice
of proof of any loss within the time periods specified in the applicable
insurance policies;
|
|
|
(D)
|
the
insurers waive:
|
|
|
(aa)
|
all
rights of set-off and counterclaim against COFACE, the COFACE Agent and
the Lenders in connection with their rights to make payments under such
insurance; and
|
|
|
(bb)
|
all
rights of subrogation to the rights of the COFACE Agent and the Lenders
against the Borrower;
|
|
|
(E)
|
the
insurance be primary and not excess to or contributory to any insurance or
self-insurance maintained by the
Lenders;
|
110
|
|
(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 Agent at
the same time such notices are sent to the Borrower and shall be effective
as stated in such notices provided that, fifteen
(15) days’ advance written notice shall be given by the Borrower in
the event of notice of cancellation for non-payment of premium;
and
|
|
|
(G)
|
the
insurers will undertake, not to make any material modification or
amendment to the terms of such insurance policies without the prior
written consent of the COFACE Agent (acting on the instructions of all the
Lenders). For the purpose of this paragraph (G), material
modification means a modification such that the insurance as modified
would not meet any longer the terms and conditions set out in this
Agreement.
|
|
21.5
|
Additional Domestic
Subsidiaries
|
Notify
the COFACE Agent of the creation or acquisition of any Domestic Subsidiary and
promptly thereafter (and in any event within sixty (60) days), cause such
person to:
|
|
(a)
|
become
a Subsidiary Guarantor by delivering to the COFACE Agent a duly executed
Guarantee Agreement or such other document as the COFACE Agent shall deem
appropriate for such purpose;
|
|
|
(b)
|
pledge
a security interest in all Collateral owned by such Subsidiary (provided that if such
Collateral consists of Capital Stock of a Foreign Subsidiary, such
security interest will be 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 Pledge Agreement)) by delivering to the
COFACE Agent a duly executed supplement to each Security Document or such
other document as the COFACE Agent shall deem appropriate for such purpose
and comply with the terms of each Security
Document;
|
|
|
(c)
|
deliver
to the COFACE Agent such documents and certificates referred to in
Schedule 2 (Conditions
Precedent) as may be reasonably requested by the COFACE
Agent;
|
|
|
(d)
|
deliver
to the COFACE Agent such original Capital Stock or other certificates and
stock or other transfer powers evidencing the Capital Stock of such
person;
|
|
|
(e)
|
deliver
to the COFACE Agent such updated Schedules to the Finance Documents as
requested by the COFACE Agent with respect to such person;
and
|
|
|
(f)
|
deliver
to the COFACE Agent such other documents as may be reasonably requested by
the COFACE Agent (including, any “know your customer”
information), all in form, content and scope reasonably satisfactory to
the COFACE Agent.
|
111
|
21.6
|
Additional Foreign
Subsidiaries
|
Notify
the COFACE Agent at the time that any person becomes a Foreign Subsidiary of the
Borrower or any Subsidiary, and promptly thereafter (and in any event within
sixty (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 Agent a
Security Document pledging sixty five per cent. (65%) of
the total outstanding Capital Stock of such new Foreign Subsidiary
(subject to the provisions of Clause 3.6 (Foreign Subsidiaries
Security) of the Stock Pledge Agreement) and a consent thereto
executed by such new Foreign Subsidiary (including, without limitation, if
applicable, original stock certificates (or the equivalent thereof
pursuant to the Applicable Laws and practices of any relevant foreign
jurisdiction) evidencing that the Capital Stock of such new Foreign
Subsidiary, together with an appropriate undated stock power for each
certificate duly executed in blank by the registered owner
thereof);
|
|
|
(b)
|
cause
such person to deliver to the COFACE Agent such documents and certificates
referred to in Schedule 2 (Conditions Precedent)
as may be reasonably requested by the COFACE
Agent;
|
|
|
(c)
|
cause
the Borrower to deliver to the COFACE Agent such updated Schedules to the
Finance Documents as requested by the COFACE Agent with regard to such
person; and
|
|
|
(d)
|
cause
such person to deliver to the COFACE Agent such other documents as may be
reasonably requested by the COFACE Agent, all in form, content and 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 and cause any Communications Licence issued by
the FCC that is acquired by the Borrower or any Subsidiary thereof after the
date of this Agreement to be held by a Licence Subsidiary.
112
|
21.8
|
Owned Real
Property
|
As soon
as practical, and in any event within thirty (30) days following Financial
Close (as such date may be extended by the COFACE Agent in its reasonable
discretion), or at such later time as may be provided below, with respect to all
owned real property (to the extent located in the United States) of the
Borrower or any of the other Subsidiaries as of the date of this
Agreement:
|
|
(a)
|
Mortgages
|
the
COFACE Agent shall have received a duly authorised, executed and delivered
Mortgage in form and substance reasonably satisfactory to the COFACE
Agent;
|
|
(b)
|
Title
Insurance
|
the
COFACE Agent shall have received upon its written request therefor a marked-up
commitment for a policy of title insurance, insuring the Finance Parties’ first
priority Liens and showing no Liens (other than those Liens set out in items 7
and 8 of Schedule 17 (Existing
Liens)), prior to the Finance Parties’ Liens other than for ad valorem taxes not yet due
and payable, with title insurance companies acceptable to the COFACE Agent on
the property subject to a Mortgage with the final title insurance policy, being
delivered within sixty (60) days after the date of this Agreement, as such
date may be extended by the COFACE Agent in its reasonable
discretion. Further, the Borrower agrees to provide or obtain any
customary affidavits and indemnities as may be required or necessary to obtain
title insurance satisfactory to the COFACE Agent;
|
|
(c)
|
Title
Exceptions
|
the
COFACE Agent shall have received upon its written request therefor copies of all
recorded documents creating exceptions to the title policy referred to in
Clause 21.8(a) (Mortgages);
|
|
(d)
|
Matters Relating to Flood
Hazard Properties
|
the
COFACE Agent shall have received upon its written request therefor a
certification from the National Research Center, or any successor agency
thereto, regarding each parcel of real property subject to a Mortgage;
and
|
|
(e)
|
Other Real Property
Information
|
the
COFACE Agent shall have received such other certificates, documents and
information as are reasonably requested by the COFACE Agent, including, without
limitation, engineering and structural reports, permanent certificates of
occupancy and evidence of zoning compliance, each in form and substance
satisfactory to the COFACE Agent.
113
|
21.9
|
Leased Real
Property
|
The
Borrower shall use reasonable efforts to cause within thirty (30) days
following the written request therefor by the COFACE Agent (as such date may be
extended by the COFACE Agent in its reasonable discretion), with respect to all
leased real property (to the extent located in the United States) of the
Borrower or any of its Subsidiaries as of the date of this Agreement, the COFACE
Agent to have received a duly authorized, executed and delivered collateral
assignment of lease and related landlord agreement, in each case, in form and
substance satisfactory thereto.
|
21.10
|
After Acquired Real Property
Collateral
|
Notify
the COFACE Agent, within ten (10) Business Days after the acquisition of
any owned or leased real property by any Obligor that is not subject to the
existing Security Documents, and within ninety (90) days following request
by the COFACE Agent, deliver or, in the case of leased real property, use
reasonable efforts to deliver, the corresponding documents, instruments and
information required to be delivered pursuant 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 after the end of any fiscal quarter during which more
than twenty five per cent. (25%) of
revenues is originally denominated in a single currency other than Dollars or
Canadian Dollars, execute foreign currency exchange or swap Hedging Agreements
with the Original Lenders for such currency on terms and conditions reasonably
acceptable to the COFACE Agent.
|
21.12
|
Taxation
|
|
|
(a)
|
Each
Obligor shall (and the Borrower shall ensure that each member of the Group
will) pay and discharge all Taxes imposed upon it or its assets within the
time period allowed without incurring penalties unless and only to the
extent that:
|
|
|
(i)
|
such
payment is being contested in good
faith;
|
|
|
(ii)
|
adequate
reserves are being maintained for those Taxes and the costs required to
contest them which have been disclosed in its latest financial statements
delivered to the COFACE Agent under Clause 19 (Information
Undertakings); and
|
|
|
(iii)
|
such
payment can be lawfully withheld and failure to pay those Taxes does not
have or is not reasonably likely to have a Material Adverse
Effect.
|
|
|
(b)
|
No
Obligor may change its residence for Tax
purposes.
|
114
|
21.13
|
Preservation of
Assets
|
The
Borrower shall (and shall ensure that each 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 of its business.
|
21.14
|
Pari
Passu
Ranking
|
The
Borrower shall (and shall ensure that each Obligor will):
|
|
(a)
|
procure
that its obligations under the Finance Documents to which it is a party do
and will rank at least pari passu with all its
other present and future unsecured, unsubordinated obligations, save for
obligations preferred by operation of Applicable Law;
and
|
|
|
(b)
|
ensure
that at all times the claims of each Finance Party against it under the
Finance Documents to which it is a party rank at least pari passu with the
claims of all its unsecured creditors save those whose claims are
preferred by any bankruptcy, insolvency, liquidation or similar Applicable
Laws of general application.
|
|
21.15
|
Intellectual
Property
|
The
Borrower shall (and shall ensure that each member of the Group
will):
|
|
(a)
|
preserve
and maintain the subsistence and validity of the Intellectual Property
necessary for the business of the relevant Group
member;
|
|
|
(b)
|
use
reasonable endeavours to prevent any infringement in any material respect
of the Intellectual Property;
|
|
|
(c)
|
make
registrations and pay all registration fees and taxes necessary to
maintain the Intellectual Property in full force and effect and record its
interest in that Intellectual
Property;
|
|
|
(d)
|
not
use or permit the Intellectual Property to be used in a way or take any
step or omit to take any step in respect of that Intellectual Property
which may materially and adversely affect the existence or value of the
Intellectual Property or imperil the right of any member of the Group to
use such property; and
|
|
|
(e)
|
not
discontinue the use of the Intellectual
Property,
|
where
failure to do so, in the case of paragraphs (a) and (b) above, or, in the
case paragraphs (d) and (e) above, such use, permission to use, omission or
discontinuation, is reasonably likely to have a Material Adverse
Effect.
|
21.16
|
Access
|
If a
Default is continuing or the COFACE Agent reasonably suspects a Default is
continuing or may occur, each Obligor shall, and the Borrower shall ensure that
each member of the Group will permit the COFACE Agent and/or the Security Agent
and/or accountants or other professional advisers and contractors of the COFACE
Agent or Security Agent free access at all reasonable times and on reasonable
notice at the risk and cost of the Borrower to:
115
|
|
(a)
|
the
premises, assets, books, accounts and records of each member of the Group;
and
|
|
|
(b)
|
meet
and discuss matters with management of the
Group.
|
|
21.17
|
Further
Assurance
|
|
|
(a)
|
The
Borrower shall (and shall procure that each member of the Group will)
promptly do all such acts or execute all such documents (including
assignments, transfers, mortgages, charges, notices and instructions) as
the Security Agent may reasonably specify (and in such form as the
Security Agent may reasonably require in favour of the Security Agent or
its nominee(s)):
|
|
|
(i)
|
to
perfect a Lien created or intended to be created under or evidenced by the
Security Documents (which may include the execution of a mortgage, charge,
assignment or other Lien over all or any of the assets which are, or are
intended to be, the subject of the Security Documents) or for the exercise
of any rights, powers and remedies of the Security Agent or the Finance
Parties provided by or pursuant to the Finance Documents or by Applicable
Law;
|
|
|
(ii)
|
to
confer on the Security Agent or confer on the Finance Parties a Lien over
any property and assets of the Group located in any jurisdiction
equivalent or similar to a Lien intended to be conferred by or pursuant to
the Security Documents; and
|
|
|
(iii)
|
to
facilitate the realisation of the assets which are, or are intended to be,
the subject of a Lien.
|
|
|
(b)
|
The
Borrower shall (and shall procure that each member of the Group shall)
take all such action as is available to it (including making all filings
and registrations) as may be necessary for the purpose of the creation,
perfection, protection or maintenance of any Lien conferred or intended to
be conferred on the Security Agent or the Finance Parties by or pursuant
to the Finance Documents.
|
|
21.18
|
Payments under the Satellite
Construction Contract
|
All
payments to be made in accordance with Exhibit F of the Satellite Construction
Contract for the balance of phase 1 and 2 after EDC2 (as such term is defined in
the Satellite Construction Contract) shall be invoiced in Euros by the Supplier
and paid in Dollars using the exchange rate set out in the Thales Direct
Agreement.
116
|
22.
|
NEGATIVE
UNDERTAKINGS
|
The
undertakings in this Clause 22 (Negative Undertakings) remain
in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or any Commitment is in
force. The Borrower shall, and shall cause each of its Subsidiaries
to, comply with the undertakings 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 permitted pursuant to
Clause 22.1(c));
|
|
|
(b)
|
Financial
Indebtedness incurred in connection with the Interest Rate Cap
Agreement;
|
|
|
(c)
|
Financial
Indebtedness incurred in connection with a Hedging Agreement required
pursuant to Clause 21.11 (Hedging
Agreements);
|
|
|
(d)
|
Financial
Indebtedness existing on the date of this Agreement and not otherwise
permitted under this Clause and set out in Schedule 14 (Financial Indebtedness and
Guarantee Obligations);
|
|
|
(e)
|
Guarantee
Obligations in favour of the COFACE Agent for the benefit of 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 Foreign
Subsidiary;
|
|
|
(iii)
|
Financial
Indebtedness owed by a Foreign Subsidiary to any Obligor; provided that the
aggregate amount of such Financial Indebtedness outstanding at any time
pursuant to this paragraph (iii) shall not exceed the Foreign
Investment Limitation (calculated without regard to paragraph (b) of
the definition of Foreign Investment Limitation and excluding the Existing
Canadian Note) as of any date of
determination;
|
|
|
(iv)
|
Financial
Indebtedness owed by a Foreign Subsidiary to another Foreign Subsidiary;
and
|
|
|
(v)
|
Guarantee
Obligations by the Borrower on behalf of any Obligor or Foreign Subsidiary
not to exceed one million Dollars (US$1,000,000) in
aggregate;
|
|
|
(g)
|
Financial
Indebtedness pursuant to the following paragraphs (i) to (v) (and any
extension, renewal, replacement or refinancing thereof, but not to
increase the aggregate principal amount), provided that at the
time such Financial Indebtedness is incurred, the COFACE Agent and the
Lenders shall have received from the Borrower a Compliance Certificate in
form and substance satisfactory to the COFACE Agent (including an Adjusted
Consolidated EBITDA Reconciliation for the fiscal period covered by such
Compliance Certificate), demonstrating that, after giving effect to the
incurrence of any such Financial Indebtedness, the Borrower will be in
pro forma
compliance with the financial covenants set forth in Clause 20 (Financial Covenants)
applicable at such time:
|
117
|
|
(i)
|
Financial
Indebtedness of the Borrower and its Subsidiaries incurred in connection
with Capital Leases and/or purchase money Financial Indebtedness of the
Borrower and its Subsidiaries in an aggregate amount not to exceed twenty
five million Dollars (US$25,000,000) on any date of
determination;
|
|
|
(ii)
|
Financial
Indebtedness of a person existing at the time such person became a
Subsidiary or assets were acquired from such person not exceeding ten
million Dollars (US$10,000,000), to the extent such Financial Indebtedness
was not incurred in connection with or in contemplation of, such person
becoming a Subsidiary or the acquisition of such assets, which
transactions in aggregate since the date of this Agreement do not exceed
at any time twenty five million Dollars
(US$25,000,000);
|
|
|
(iii)
|
Guarantee
Obligations with respect to Financial Indebtedness permitted pursuant to
paragraph (g) of this Clause;
|
|
|
(iv)
|
Financial
Indebtedness of Foreign Subsidiaries, not to exceed in the aggregate at
any time outstanding two million Dollars (US$2,000,000);
and
|
|
|
(v)
|
Subordinated
Indebtedness not otherwise permitted pursuant to this Clause in an
aggregate amount outstanding not to exceed two hundred million Dollars
(US$200,000,000) at any time, provided that, no Event of
Default has occurred and is continuing and subject to the prior agreement
of an Acceptable Intercreditor
Agreement;
|
|
|
(h)
|
Financial
Indebtedness incurred in respect of workers’ compensation claims,
self-insurance obligations, bankers’ acceptances, performance, surety and
similar bonds and completion guarantees provided by the Borrower or one of
its Subsidiaries in the ordinary course of trading, not to exceed in the
aggregate at any time outstanding ten million Dollars
(US$10,000,000);
|
|
|
(i)
|
Financial
Indebtedness arising from the honouring by a bank or other financial
institution of a cheque, draft or similar instrument in the ordinary
course of trading inadvertently drawn against insufficient funds, provided however, that such Financial
Indebtedness is extinguished within five (5) Business Days and does
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 or any of its
Subsidiaries providing for indemnities, guarantees, purchase price
adjustments, holdbacks, contingency payment obligations based on the
performances of the acquired or disposed assets or similar obligations
incurred by any person in connection with the acquisition or disposition
of assets or Capital Stock as permitted by this Agreement provided that such
Financial Indebtedness does not exceed in the aggregate at any time
outstanding ten million Dollars (US$10,000,000);
and
|
118
|
|
(k)
|
Financial
Indebtedness otherwise approved by the COFACE Agent in
writing.
|
|
22.2
|
Limitations on
Liens
|
Not
create, incur, assume or suffer to exist, any Lien on or with respect to any of
its assets or properties (including, without limitation, shares of Capital
Stock), real or personal, whether now owned or hereafter acquired,
except:
|
|
(a)
|
Liens
of the Security Agent or the COFACE Agent (as the case may be) for the
benefit of the Finance Parties under the Finance
Documents;
|
|
|
(b)
|
Liens
not otherwise permitted by this Clause and in existence on the date of
this Agreement and described in Schedule 17 (Existing
Liens);
|
|
|
(c)
|
Liens
for taxes, assessments and other governmental charges or levies not yet
due or as to which the period of grace if any, related thereto has not
expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by
GAAP;
|
|
|
(d)
|
the
claims of materialmen, mechanics, carriers, warehousemen, processors or
landlords for labour, materials, supplies or rentals incurred in the
ordinary course of trading:
|
|
|
(i)
|
which
are not overdue for a period of more than ninety (90) days;
or
|
|
|
(ii)
|
which
are being contested in good faith and by appropriate proceedings if
adequate reserves are maintained to the extent required by
GAAP;
|
|
|
(e)
|
Liens
consisting of deposits or pledges made in the ordinary course of trading
in connection with, or to secure payment of, obligations under workers’
compensation, unemployment insurance or similar
legislation;
|
|
|
(f)
|
Liens
constituting encumbrances in the nature of zoning restrictions, easements
and rights or restrictions of record on the use of real property, which in
the aggregate are not substantial in amount and which do not, in any case,
detract from the value of such property or impair the use thereof in the
ordinary conduct of trading;
|
|
|
(g)
|
Liens
existing on any asset of any person at the time such person becomes a
Subsidiary or is merged or consolidated with or into a Subsidiary
which:
|
|
|
(i)
|
were
not created in contemplation of or in connection with such event;
and
|
119
|
|
(ii)
|
do
not extend to or cover any other property or assets of the Borrower or any
Subsidiary, so long as any Financial Indebtedness related to any such
Liens are permitted under Clause 22.1(g)(ii) (Limitations on Financial
Indebtedness):
|
|
|
(h)
|
Liens
securing Financial Indebtedness permitted under Clause 22.1(g)(i)
(Limitations on
Financial Indebtedness) provided
that:
|
|
|
(i)
|
such
Liens shall be created substantially simultaneously with the acquisition
or lease of the related asset;
|
|
|
(ii)
|
such
Liens do not at any time encumber any property other than the property
financed by such Financial
Indebtedness;
|
|
|
(iii)
|
the
amount of Financial Indebtedness secured thereby is not increased;
and
|
|
|
(iv)
|
the
principal amount of Financial Indebtedness secured by any such Lien shall
at no time exceed one hundred per cent. (100%)
of the original purchase price or lease payment amount of such property at
the time it was acquired;
|
|
|
(i)
|
Liens
securing Financial Indebtedness permitted under Clause 22.1(g)(iv)
(Limitations on
Financial Indebtedness) provided that such
liens do not at any time encumber any property other than that of the
applicable Foreign Subsidiary obliged with respect to such Financial
Indebtedness;
|
|
|
(j)
|
Liens
to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like nature incurred in
the ordinary course of trading;
|
|
|
(k)
|
Liens
incurred or deposits made in the ordinary course of trading in connection
with workers’ compensation, unemployment insurance and other types of
social security;
|
|
|
(l)
|
rights
of banks to set-off deposits against debts owed to such
banks;
|
|
|
(m)
|
Liens
upon specific items of inventory or other goods and proceeds of the
Borrower and its Subsidiaries securing their obligations in respect of
bankers’ acceptances issued or created for the account of any such person
to facilitate the purchase, storage or shipment of such inventory or other
goods;
|
|
|
(n)
|
Liens
in favour of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of
goods;
|
|
|
(o)
|
Liens
encumbering property or assets under construction arising from progress or
partial payments by a customer of the Borrower or one of its Subsidiaries
relating to such property or
assets;
|
|
|
(p)
|
Liens
on assets that are the subject of a sale and leaseback transaction
permitted by the provisions of this
Agreement;
|
120
|
|
(q)
|
Liens
securing Satellite Vendor Obligations, provided that such Lien
does not attach or encumber any asset or property of the Borrower or any
Subsidiary thereof other than the asset or personal property which is the
subject of such obligation or the Escrow
Account;
|
|
|
(r)
|
Liens
securing Financial Indebtedness permitted by Clause 22.1(b) or (c)
(Limitations on
Financial Indebtedness);
|
|
|
(s)
|
Liens
not otherwise permitted under this Agreement securing obligations not at
any time exceeding in aggregate five million Dollars (US$5,000,000);
and
|
|
|
(t)
|
Liens
otherwise approved by the COFACE Agent in
writing.
|
|
22.3
|
Limitations on 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
Financial Indebtedness or other obligation or security, substantially all or a
portion of the business or assets of any other person or any other investment or
interest whatsoever in any other person, or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or any investment in
cash or by delivery of property in, any person except:
|
|
(a)
|
investments:
|
|
|
(i)
|
existing
on the date of this Agreement in Subsidiaries existing on the date of this
Agreement;
|
|
|
(ii)
|
after
the date of this Agreement in:
|
|
|
(A)
|
existing
Subsidiaries; and/or
|
|
|
(B)
|
Subsidiaries
formed after the date of this Agreement, provided that, in each
case:
|
|
|
(x)
|
the
Borrower and its Subsidiaries comply with the applicable provisions of
Clause 21.5 (Additional Domestic
Subsidiaries); and
|
|
|
(y)
|
the
amount of any such investments in a Foreign Subsidiary shall not exceed
the Foreign Investment Limitation as of the date of such
investment;
|
|
|
(iii)
|
the
other loans, advances and investments described on Schedule 21 (Existing Loans, Investments
and Advances) existing on the date of this
Agreement;
|
|
|
(iv)
|
by
any Subsidiary in the Borrower;
|
121
|
|
(b)
|
investments
in:
|
|
|
(i)
|
marketable
direct obligations issued or unconditionally guaranteed by the
United States or any agency thereof maturing within one hundred and
twenty (120) days from the date of acquisition
thereof;
|
|
|
(ii)
|
commercial
paper maturing no more than one hundred and twenty (120) days from
the date of creation thereof and currently having the highest rating
obtainable from either S&P or
Xxxxx’x;
|
|
|
(iii)
|
certificates
of deposit maturing no more than one hundred and twenty (120) days
from the date of creation thereof issued by commercial banks incorporated
under the laws of the United States, each having combined capital,
surplus and undivided profits of not less than five hundred million
Dollars (US$500,000,000) and having a rating of “A” or better from
either S&P or Xxxxx’x; provided that the
aggregate amount invested in such certificates of deposit shall not at any
time exceed five million Dollars (US$5,000,000) for any one such
certificate of deposit and ten million Dollars (US$10,000,000) for any one
such bank;
|
|
|
(iv)
|
time
deposits maturing no more than thirty (30) days from the date of
creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the
deposits of which are insured by the FDIC and in amounts not exceeding the
maximum amounts of insurance thereunder;
and
|
|
|
(v)
|
other
investments permitted by the Borrower’s investment policy as of the date
hereof in the form attached at Schedule 28 (Investment
Policy);
|
|
|
(c)
|
investments
by the Borrower or any of its Subsidiaries in the form of Permitted
Acquisitions or Permitted Joint Venture Investments; provided that the
amount of any such investments in a Foreign Subsidiary (or any entity that
would constitute a Foreign Subsidiary if the Borrower or one of its
Subsidiaries owned more than fifty percent (50%) of the outstanding
Capital Stock of such entity) shall not exceed the Foreign Investment
Limitation as of the date of such
investment;
|
|
|
(d)
|
Hedging
Agreements permitted pursuant to Clause 21.11 (Hedging Agreements) and
any Interest Rate Cap Agreement and investments in collateral accounts
securing any Hedging Agreements and Interest Rate Cap
Agreement;
|
|
|
(e)
|
purchases
of assets in the ordinary course of
trading;
|
|
|
(f)
|
investments
in the form of loans and advances to employees in the ordinary course of
trading, which, in aggregate, do not exceed at any time five hundred
thousand Dollars (US$500,000);
|
122
|
|
(g)
|
intercompany
Financial Indebtedness permitted pursuant to Clause 22.1(e) (Limitations on Financial
Indebtedness);
|
|
|
(h)
|
loans
to one (1) or more officers or other employees of the Borrower or its
Subsidiaries in connection with such officers’ or employees’ acquisition
of Capital Stock of the Borrower in the ordinary
course of trading, consistent with the Borrower’s equity incentive plan,
which, in aggregate, do not exceed at any time five hundred thousand
Dollars (US$500,000);
|
|
|
(i)
|
endorsement
of cheques or bank drafts for deposit or collection in the ordinary course
of trading;
|
|
|
(j)
|
performance,
surety and appeal bonds;
|
|
|
(k)
|
investments
consisting of non-cash consideration received by the Borrower or any of
its Subsidiaries from the sale of assets or Capital Stock of a Subsidiary
as permitted by this Agreement; and
|
|
|
(l)
|
investments
in Globaltouch (West Africa) Limited provided
that:
|
|
|
(i)
|
the
amount 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)
|
the
investment complies with paragraphs (b), (d) and (e) of the
definition of Permitted Joint Venture Investments;
and
|
|
|
(iii)
|
the
Borrower shall deliver such information relating to the investment as the
COFACE Agent may reasonably
request.
|
|
22.4
|
Limitations on Mergers and
Liquidations
|
Not
merge, consolidate or enter into any similar combination with any other person
or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:
|
|
(a)
|
any
Wholly-Owned Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the
Borrower shall be the continuing or surviving person) or with or into any
Subsidiary Guarantor (provided that the
Subsidiary Guarantor shall be the continuing or surviving
person);
|
|
|
(b)
|
any
Wholly-Owned Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other Wholly-Owned Subsidiary; (provided that if the
transferor in such a transaction is a Subsidiary Guarantor, then the
transferee must either be the Borrower or a Subsidiary
Guarantor);
|
|
|
(c)
|
any
Wholly-Owned Subsidiary of the Borrower may merge with or into the person
such Wholly-Owned Subsidiary was formed to acquire in connection with a
Permitted Acquisition; and
|
123
|
|
(d)
|
any
Subsidiary of the Borrower may wind-up into the Borrower or any Subsidiary
Guarantor.
|
|
22.5
|
Limitations on Asset
Dispositions
|
Not make
any Asset Disposition (including, without limitation, the sale of any
receivables and leasehold interests and any sale-leaseback or similar
transaction) except:
|
|
(a)
|
the
sale of inventory in the ordinary course of
trading;
|
|
|
(b)
|
the
sale of obsolete, damaged, worn-out or surplus assets no longer needed in
the business of the Borrower or any of its
Subsidiaries;
|
|
|
(c)
|
any
lease 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 is entered into and does not have, and
could not reasonably expected to have, a Material Adverse
Effect;
|
|
|
(d)
|
the
transfer of assets to the Borrower or any Subsidiary Guarantor pursuant to
Clause 22.4 (Limitations on Mergers and
Liquidations); and
|
|
|
(e)
|
the
sale or discount without recourse of accounts receivable arising in the
ordinary course of trading in connection with the compromise or collection
thereof.
|
|
22.6
|
Limitations on Dividends and
Distributions
|
The
Borrower shall not pay or make any Shareholder Distribution:
|
|
(a)
|
prior
to the end of the Availability Period;
and
|
|
|
(b)
|
thereafter,
unless on the date for the proposed Shareholder
Distribution:
|
|
|
(i)
|
the
Debt Service Coverage Ratio calculated by reference
to:
|
|
|
(A)
|
each
Debt Service Period preceding the date of calculation;
and
|
|
|
(B)
|
the
audited financial statements delivered in accordance with this
Agreement,
|
for the
twelve (12) Months preceding the date of the proposed Shareholder
Distribution is equal to or more than 1.50:1 (one point five to one) and provided that, any
Shareholder Distribution is made within thirty (30) days of the date on
which such financial statements used in the calculation of the Debt Service
Coverage Ratio were delivered in accordance with this Agreement;
|
|
(ii)
|
no
Default shall have occurred and be
continuing;
|
124
|
|
(iii)
|
the
Debt Service Reserve Account is funded with the DSRA Required Balance
(both before and immediately after the relevant Shareholder
Distribution);
|
|
|
(iv)
|
the
Borrower has made payment in full to the Supplier of each of the
forty eight (48) Satellites;
|
|
|
(v)
|
the
Debt Service Account is funded with the DSA Required Balance (both before
and immediately after the relevant Shareholder
Distribution);
|
|
|
(vi)
|
the
Convertible Notes Reserve Account is funded with the CNRA Required Balance
(both before and immediately after the relevant Shareholder Distribution);
and
|
|
|
(vii)
|
the
Borrower has made each mandatory prepayment required pursuant to
Clause 7.3 (Mandatory Prepayment – Initial
Excess Cash Flow), Clause 7.4 (Mandatory Prepayment – Ongoing
Excess Cash Flow) and Clause 7.6 (Mandatory Prepayments – Asset
Dispositions).
|
|
22.7
|
Limitations on Exchange and
Issuance of Capital Stock
|
Except as
provided 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 its terms or by the terms of any security into which
it is convertible or exchangeable, is, or upon the happening of an event or
passage of time would be:
|
|
(a)
|
convertible
or exchangeable into Financial Indebtedness;
or
|
|
|
(b)
|
required
to be redeemed or repurchased prior to the date that is six
(6) Months after the Final Maturity Date, including at the option of
the holder, in whole or in part, or has, or upon the happening of an event
or passage of time would have, a redemption or similar payment
due.
|
|
22.8
|
Transactions with
Affiliates
|
Not
directly or indirectly:
|
|
(a)
|
make
any loan or advance to, or purchase or assume any note or other obligation
to or from, any of its officers, directors, shareholders or other
Affiliates, or to 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 its Affiliates;
or
|
|
|
(b)
|
enter
into, or be a party to, any other transaction not described in
clause (a) above with any of its Affiliates other
than:
|
|
|
(i)
|
transactions
permitted by Clause 22.1 (Limitations on Financial
Indebtedness), 22.3 (Limitations on Loans,
Investments and Acquisitions), 22.4 (Limitations on Mergers and
Liquidations) and 22.7 (Limitations on Exchange and
Issuance of Capital Stock);
|
125
|
|
(ii)
|
transactions
existing on the date of this Agreement and described on Schedule 27 (Transactions with
Affiliates);
|
|
|
(iii)
|
normal
compensation and reimbursement of reasonable expenses of officers and
directors including adoption of a restricted stock bonus or purchase
plan;
|
|
|
(iv)
|
other
transactions in the ordinary course of trading on terms as favourable as
would be 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 of the Borrower;
|
|
|
(v)
|
the
Borrower’s incentive compensation plan described in Schedule 22 (Incentive Plan);
and
|
|
|
(vi)
|
transactions
pursuant to the Finance Documents.
|
|
22.9
|
Certain Accounting Changes;
Organisational Documents
|
|
|
(a)
|
Not
change its Fiscal Year end, or make any change in its accounting treatment
and reporting practices except as required by
GAAP.
|
|
|
(b)
|
Not
amend, modify or change:
|
|
|
(i)
|
its
articles of incorporation (or corporate charter or other similar
organizational documents); or
|
|
|
(ii)
|
its
bylaws (or other similar
documents),
|
in any
such case, in any manner adverse in any respect to the rights or interests of
the Finance Parties.
|
22.10
|
Amendments; Payments and
Prepayments of Subordinated
Indebtedness
|
|
|
(a)
|
Not
amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Indebtedness without the consent
of the COFACE Agent and the
Lenders.
|
|
|
(b)
|
Except
in the case of the Convertible Notes, not cancel, forgive, make any
payment or prepayment on, or redeem or acquire for value including,
without limitation:
|
|
|
(i)
|
by
way of depositing with any trustee with respect thereto money or
securities before due for the purpose of paving when due;
and
|
|
|
(ii)
|
at
the maturity thereof any Subordinated Indebtedness, except refinancings,
refundings, renewals, extensions or exchange of any Subordinated
Indebtedness permitted by Clause 22.1(e) (Limitations on Financial
Indebtedness).
|
126
|
22.11
|
Restrictive
Agreements
|
Not enter
into or permit to exist any agreement which impairs or limits the ability of any
Subsidiary of the Borrower to pay dividends to the Borrower.
|
22.12
|
Nature of
Business
|
Not alter
in any material respect the character or conduct of the business conducted by
the Borrower and its Subsidiaries as of the date of this
Agreement. Without limiting the foregoing, the Borrower will not
permit or cause any Licence Subsidiary to engage in any line of business or
engage in any other activity (including without limitation incurring
liabilities) other than the ownership of one or more Communications Licences;
provided that, subject
to any restrictions under Applicable Law with respect to Communications
Licences, the Borrower shall cause each of the Licence Subsidiaries to execute
and deliver a Guarantee Agreement and each other Finance Document to which such
Licence Subsidiary is a party. In no event shall:
|
|
(a)
|
any
Licence Subsidiary own any assets other than one (1) or more
Communications Licences (and assets reasonably related thereto to the
extent necessary to comply with all Applicable Law);
and
|
|
|
(b)
|
neither
the Borrower nor any Subsidiary other than a Licence Subsidiary shall hold
any Communications Licence issued by the
FCC.
|
|
22.13
|
Impairment of
Liens
|
Not take
or omit to take any action, which might or would have the result of materially
impairing the security interests created in favour of the COFACE Agent with
respect to the Collateral or grant to any person (other than the COFACE Agent
for the benefit of itself and the Lenders pursuant to the Security Documents)
any interest whatsoever in the Collateral, 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
|
Excess Cash Flow / Purchase of
Satellites
|
|
|
(a)
|
The
Borrower may not agree to the order, purchase, manufacture or delivery of
any or all Phase 3 Satellites (including acting or failing to act
under the Satellite Construction Contract) unless it has provided a
business plan to the COFACE Agent with respect to those Phase 3
Satellites to be so ordered, purchased, manufactured or delivered (the
“Relevant
Satellites”):
|
|
|
(i)
|
prepared
in good faith by the Borrower and based upon reasonable
assumptions;
|
|
|
(ii)
|
demonstrating
compliance with each of the financial covenants contained in
Clause 20 (Financial Covenants) on
the date of such business plan and on a thirty six (36) Month
projected basis;
|
|
|
(iii)
|
demonstrating
that the Borrower has funds immediately available to it in an amount not
less than fifty per cent. (50%) of
the Phase 3 Costs with respect to such Relevant Satellites (the
“Relevant Funds”);
and
|
127
|
|
(iv)
|
detailing
a fully funded business plan for the Phase 3 Costs and the source of
funding for the remaining fifty per cent. (50%) of
the relevant Phase 3 Costs with respect to such Relevant
Satellites.
|
For the
avoidance of doubt, nothing in this Clause 22.14 shall oblige the Borrower to
purchase all of the Phase 3 Satellites.
|
|
(b)
|
The
Relevant Funds may be by way of Subordinated Debt, Capital Stock and/or
available Excess Cash Flow and shall be deposited into the Capital
Expenditure Account and applied solely for the purposes of paying the
Phase 3 Costs with respect to such Relevant
Satellites.
|
|
22.15
|
No
Hedging
|
|
|
(a)
|
Other
than in accordance with Clause 21.11 (Hedging Agreements) or
by way of the Interest Rate Cap Agreements, the Borrower shall not,
without the consent of the COFACE Agent, enter into any Hedging
Agreement.
|
|
|
(b)
|
Hedging
Agreements shall not be entered into with any parties other than the
Original Lenders.
|
|
22.16
|
Commercial
Contracts
|
|
|
(a)
|
Not
amend or grant any waiver:
|
|
|
(i)
|
in
respect of any provision of any Commercial Contract relating to the first
twenty four (24) Satellites, if such amendment or waiver
would or could reasonably be expected to adversely affect the Lenders;
and
|
|
|
(ii)
|
in
respect of any other provision of any Commercial Contract not referred to
in paragraph (a)(i) above, if such amendment or waiver would or could
reasonably be expected to have a Material Adverse
Effect.
|
|
|
(b)
|
Not
exercise the option to order from the Supplier up to eighteen (18)
additional recurring Spacecraft (as such term is defined in the Satellite
Construction Contract) pursuant to Article 29(B) (Options) of the
Satellite Construction Contract without the prior written consent of the
COFACE Agent.
|
|
23.
|
EVENTS
OF DEFAULT
|
Each of
the events or circumstances set out in Clause 23 (Events of Default) is an
Event of Default.
128
|
23.1
|
Non-Payment
|
An
Obligor does not pay on the due date any amount payable pursuant to a Finance
Document at the place and in the currency in which it is expressed to be payable
unless:
|
|
(a)
|
its
failure to pay is caused by:
|
|
|
(i)
|
administrative
or technical error; or
|
|
|
(ii)
|
a
Disruption Event; and
|
|
|
(b)
|
payment
is made within:
|
|
|
(i)
|
in
the case of paragraph (a)(i)
above:
|
|
|
(A)
|
in
the case of payments of principal and interest, within two
(2) Business Days of its due date;
or
|
|
|
(B)
|
in
the case of any other payment, within four (4) Business Days of its
due date; and
|
|
|
(ii)
|
in
the case of paragraph (a)(ii)
above:
|
|
|
(A)
|
in
the case of payments of principal and interest, within three
(3) Business Days of the cessation (or reasonable avoidance) of such
Disruption Event; or
|
|
|
(B)
|
in
the case of any other payment, within five (5) Business Days of the
cessation (or reasonable avoidance) of such Disruption
Event.
|
|
23.2
|
Financial
Covenants
|
|
|
(a)
|
Any
requirement of Clause 20 (Financial Covenants) is
not satisfied.
|
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within thirty
(30) days of the COFACE Agent giving notice to the Borrower or the
Borrower becoming aware of the failure to
comply.
|
|
|
(c)
|
No
Event of Default under paragraph (a) above will occur if no later than the
date that is thirty (30) days after the Relevant Period, the Borrower has
received an Equity Cure Contribution (a “Relevant Contribution”)
and the Borrower satisfies the relevant covenant recalculated to take into
account all or part of such Relevant Contribution, provided that, the
Borrower may not cure a breach of a relevant covenant as contemplated
under this paragraph (c) for more than two (2) successive Relevant Periods
of calculation or for more than five (5) Relevant Periods in aggregate
prior to the Final Maturity Date.
|
129
|
23.3
|
Other
Obligations
|
|
|
(a)
|
An
Obligor does not comply with any provision of the Finance Documents (other
than those referred to in Clause 7.1 (Payments to the Convertible
Note Reserve Account) of the Accounts Agreement, Clause 23.1
(Non-Payment) and
Clause 23.2 (Financial
Covenants)).
|
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within ten
(10) Business Days of the COFACE Agent giving notice to the Borrower
or the Borrower becoming aware of the failure to
comply.
|
|
23.4
|
Misrepresentation
|
Any
representation or statement made by an Obligor in the Finance Documents or any
other document delivered by or on behalf of an Obligor under or in connection
with any Finance Document is or proves 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 of the COFACE Agent giving notice to the Borrower
or an Obligor becoming aware of such misrepresentation.
|
23.5
|
Cross
Default
|
|
|
(a)
|
Any
Financial Indebtedness of any Material Subsidiary is not paid when due nor
within any originally applicable grace
period.
|
|
|
(b)
|
Any
Financial Indebtedness of any Material Subsidiary is declared to be or
otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however
described).
|
|
|
(c)
|
Any
commitment for any Financial Indebtedness of any Material Subsidiary is
cancelled or suspended by a creditor of any Material Subsidiary as a
result of an event of default (however
described).
|
|
|
(d)
|
Any
creditor of any Material Subsidiary becomes entitled to declare any
Financial Indebtedness of any Material Subsidiary due and payable prior to
its specified maturity as a result of an event of default (however
described).
|
|
|
(e)
|
No
Event of Default will occur under this Clause 23.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than five
million Dollars (US$5,000,000) (or its equivalent in any other currency or
currencies).
|
|
23.6
|
Insolvency
|
Any
Material Subsidiary shall:
|
|
(a)
|
commence
a voluntary case (or analogous motion) under the federal bankruptcy laws
or under other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganisation, winding-up or adjustment of debts or analogous
proceedings;
|
130
|
|
(b)
|
file
a 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)
|
consent
to or fail to contest in a timely and appropriate manner any petition
filed against it in an involuntary case under such bankruptcy laws or
other laws;
|
|
|
(d)
|
apply
for or consent to, or fail to consent in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of a substantial part of its property,
domestic or foreign;
|
|
|
(e)
|
admit
in writing its inability to pay its debts as they become
due;
|
|
|
(f)
|
make
a general assignment for the benefit of
creditors;
|
|
|
(g)
|
take
any corporate action for the purpose of authorising any of the foregoing;
or
|
|
|
(h)
|
suspend
or threaten to suspend making payment on any of its debts or by reason of
actual or anticipated financial difficulties commences negotiations with
one (1) or more of its creditors with a view to rescheduling any of
its indebtedness (other than the Finance Parties in connection with this
Agreement).
|
|
23.7
|
Insolvency
Proceedings
|
A case or
other proceeding shall be commenced against a Material Subsidiary in any court
of competent jurisdiction and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days,
seeking:
|
|
(a)
|
relief
under the federal bankruptcy laws or under other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganisation, winding-up or
adjustment of debts or analogous proceedings;
or
|
|
|
(b)
|
the
appointment of a trustee, receiver, custodian, liquidator or the like for
a Material Subsidiary or for all or any substantial part of their
respective assets, domestic or foreign, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an
order for relief under such federal bankruptcy laws or under other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganisation,
winding-up or adjustment of debts or analogous proceedings) shall be
entered.
|
131
|
23.8
|
Creditors’
Process
|
Any
attachment, sequestration, distress or execution or any analogous process in any
jurisdiction affects any asset or assets of a Material Subsidiary having an
aggregate value of one million Dollars (US$1,000,000) and is not discharged
within twenty (20) Business Days or such longer period of time if such
Material Subsidiary is contesting such process in good faith provided that, such
process:
|
|
(a)
|
is
in any event discharged within one hundred and eighty (180) days;
and
|
|
|
(b)
|
does
not have or could not reasonably be likely to have a Material Adverse
Effect.
|
|
23.9
|
Unlawfulness and
Invalidity
|
|
|
(a)
|
It
is or becomes unlawful for an Obligor, or any other member of the Group
party to an Acceptable Intercreditor Agreement, to perform any of its
obligations under the Transaction Documents or any Acceptable
Intercreditor Agreement to which it is a party or any Lien created or
expressed to be created or evidenced by a Security Document ceases to be
effective or any subordination under any Acceptable Intercreditor
Agreement is or becomes unlawful.
|
|
|
(b)
|
Any
obligation or obligations of any Obligor under any Finance Document, or
any other member of the Group under an Acceptable Intercreditor Agreement,
are not or cease to be legal, valid, binding or enforceable and the
cessation individually or cumulatively materially and adversely affects
the interests of the Lenders under the Finance Documents or Acceptable
Intercreditor Agreement.
|
|
|
(c)
|
Any
Transaction Document is terminated or ceases to be in full force and
effect or any Lien or subordination created under a Security Document or
an Acceptable Intercreditor Agreement ceases to be legal, valid, binding,
enforceable or effective or is alleged by a party to it (other than a
Finance Party) to be ineffective.
|
|
|
(d)
|
No
Event of Default under paragraphs (b) and (c) above will occur
in respect of a Finance Document (other than this Agreement and an
Acceptable Intercreditor Agreement) if the failure to comply is capable of
remedy and is remedied within three (3) Business Days of the COFACE
Agent giving notice to the Borrower or the Borrower becoming aware of the
failure to comply.
|
|
23.10
|
Material Adverse
Change
|
Any event
or circumstance occurs which the Majority Lenders reasonably believe has or is
reasonably likely to have a Material Adverse Effect provided that, no Event of
Default shall occur under this Clause 23.10 if
such event or circumstance is capable of being remedied and is remedied to the
satisfaction of the COFACE Agent within thirty (30) days of the COFACE
Agent giving notice to the Borrower or the Borrower the becoming aware of the
occurrence of such event or circumstance.
132
|
23.11
|
Repudiation and Rescission of
Agreements
|
An
Obligor (or any other relevant party) rescinds or purports to rescind or
repudiates or purports to repudiate a Transaction Document or evidences an
intention to rescind or repudiate a Transaction Document, which has or is likely
to have a Material Adverse Effect.
|
23.12
|
Expropriation
|
The
authority or ability of a Material Subsidiary to conduct its business is limited
or wholly or substantially curtailed by any seizure, expropriation,
nationalisation, intervention, restriction or other action by or on behalf of
any governmental, regulatory or other authority or other person in relation to
any Material Subsidiary or any of its assets.
|
23.13
|
Litigation
|
Any
litigation, arbitration, administrative, governmental, regulatory or other
investigations, proceedings or disputes are commenced or threatened against any
Material Subsidiary or its assets which has or is reasonably likely to have a
Material Adverse Effect unless such action is frivolous or
vexatious.
|
23.14
|
Audit
Qualification
|
The
auditors of the Group qualify the audited annual consolidated financial
statements of the Group to an extent that has or could reasonably by expected to
have a Material Adverse Effect.
|
23.15
|
ERISA Termination
Event
|
The
occurrence of any of the following events:
|
|
(a)
|
any
Obligor or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Multiemployer
Plan or Section 412 of the Code, or Section 302 of ERISA, such
Obligor or ERISA Affiliate is required to pay as contributions
thereto;
|
|
|
(b)
|
an
“unpaid minimum required
contribution” or an “accumulated funding
deficiency” (as defined or otherwise set forth in Section 4971
of the Code or Part 3 of Subtitle B of Title 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 any Pension
Plan;
|
|
|
(c)
|
the
Borrower or any ERISA Affiliate as an employer under one (1) or more
Multiemployer Plans makes a complete or partial withdrawal from any such
Multiemployer Plan and the plan sponsor of such Multiemployer Plan
notifies such withdrawing employer that such employer has incurred a
withdrawal liability requiring payments in an amount exceeding two million
five hundred thousand Dollars (US$2,500,000);
or
|
|
|
(d)
|
(i)
|
any
ERISA Termination Event;
|
133
|
|
(ii)
|
any
Unfunded Pension Liability (taking into account only Pension Plans with
positive Unfunded Pension Liabilities);
or
|
|
|
(iii)
|
any
potential withdrawal liability under Section 4201 of ERISA, if each
Obligor and ERISA Affiliate were to withdraw completely from any and all
Multiemployer Plans,
|
and the
events described in paragraphs (d)(i), (ii) and (iii), either individually
or in the aggregate, have resulted, or would be reasonably expected to result,
in a material liability of any Obligor or any ERISA Affiliate.
|
23.16
|
Environmental
|
Any
one (1) or more Environmental Claims shall have been asserted against the
Borrower or any of its Subsidiaries; the Borrower or any of its Subsidiaries
would be reasonably likely to incur liability as a result thereof; and such
liability would be reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect.
|
23.17
|
Failure to Bring Satellites in
Service
|
The
Borrower has failed to achieve:
|
|
(a)
|
Individual
In-Orbit Acceptance with respect to six (6) Satellites delivered under the
Satellite Construction Contract by 30 March 2011;
or
|
|
|
(b)
|
Final
In-Orbit Acceptance by 1 January
2012.
|
|
23.18
|
Debt Service Reserve
Account
|
|
|
(a)
|
At
any time after the date of this Agreement the Debt Service Reserve Account
is not fully funded with the DSRA Required Balance within five
(5) Business Days of any drawdown of such Project
Account.
|
|
|
(b)
|
At
any time the Debt Service Reserve Account is not fully funded with the
DSRA Required Cash Balance within five (5) Business Days of any drawdown
of such Project Account.
|
|
23.19
|
Contingent Equity Required
Balance
|
The sum
of the Thermo Contingent Equity Account and the Borrower Contingent Equity
Account is at any time prior to the Contingent Equity Release Date less than the Contingent
Equity Required Balance.
|
23.20
|
COFACE Insurance
Policy
|
The
credit insurance cover under the COFACE Insurance Policy extended by COFACE in
favour of the Lenders in respect of each Facility ceases to be in full force and
effect for a reason attributable to the Borrower.
134
|
24.
|
REMEDIES
UPON AN EVENT OF DEFAULT
|
On and at
any time after the occurrence of an Event of Default which is continuing, the
COFACE Agent may, and it shall if so directed by the Majority Lenders, by notice
to the Borrower:
|
|
(a)
|
cancel
the Total Commitments whereupon they shall immediately be cancelled and no
further Utilisations shall be requested or made under a Facility;
and/or
|
|
|
(b)
|
declare
that all or part of the Loans, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon the same shall become immediately
due and payable; and/or
|
|
|
(c)
|
declare
that all or part of the Loans are payable on demand, whereupon they shall
become immediately due and payable;
and/or
|
|
|
(d)
|
exercise
or direct the Security Agent to exercise any or all of its rights,
remedies, powers or discretions under the Finance Documents;
and/or
|
|
|
(e)
|
exercise
all other contractual and legal rights of the Finance Parties in respect
of any Liens; and/or
|
|
|
(f)
|
take
any other action and pursue any other remedies available under Applicable
Law or under the Finance Documents.
|
|
25.
|
SECURITY
|
Unless
expressly provided to the contrary, the Security Agent holds any security
created by a Security Document for the Finance Parties on the terms set out in
Schedule 6 (The Security
Agent).
|
26.
|
CHANGES
TO THE LENDERS
|
|
26.1
|
Assignments and Transfers by
the Lenders
|
Subject
to this Clause 26 (Changes to the Lenders), a
Lender (the “Existing
Lender”) may:
|
|
(a)
|
assign
any of its rights; or
|
|
|
(b)
|
transfer
by novation any of its rights and
obligations,
|
to
another bank or financial institution or to a trust, fund or other entity which
is regularly engaged in or established for the purpose of making, purchasing or
investing in loans, securities or other financial assets (the “New Lender”).
135
|
26.2
|
Conditions of Assignment or
Transfer
|
|
|
(a)
|
The
consent of the Borrower is required for an assignment of transfer by an
Existing Lender, provided that no
consent shall be required to be obtained from the Borrower if such
transfer or assignment is:
|
|
|
(i)
|
to
a Qualifying Lender or to an existing Lender (or any of its
Affiliates);
|
|
|
(ii)
|
made
at any time when a Default has occurred and is continuing;
and/or
|
|
|
(iii)
|
required
by any Applicable Law.
|
|
|
(b)
|
The
consent of the Borrower to an assignment or transfer must not be
unreasonably withheld or delayed. The Borrower will be deemed
to have given its consent five (5) Business Days after the Existing
Lender has requested it unless the consent is expressly refused by the
Borrower within that time.
|
|
|
(c)
|
The
consent of the Borrower to an assignment must not be withheld solely
because the assignment or transfer may result in an increase to the
Mandatory Cost.
|
|
|
(d)
|
An
assignment will only be effective
on:
|
|
|
(i)
|
receipt
by the COFACE Agent of written confirmation from the New Lender (in form
and substance satisfactory to the COFACE Agent) that the New Lender will
assume the same obligations to the other Finance Parties as it would have
been under if it was an Original
Lender;
|
|
|
(ii)
|
performance
by the COFACE Agent of all necessary “know your customer” or
other similar checks under all applicable laws and regulations in relation
to such assignment to a New Lender, the completion of which the COFACE
Agent shall promptly notify to the Existing Lender and the New Lender;
and
|
|
|
(iii)
|
when
the COFACE Agent updates the Register (as defined in Clause 26.8
(Register) below)
in accordance with the provisions of Clause 26.8 (Register)
below.
|
|
|
(e)
|
A
transfer will only be effective if the procedure set out in
Clause 26.5 (Procedure for Transfer)
is complied with.
|
|
|
(f)
|
If:
|
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to make a payment to the New
Lender or Lender acting through its new Facility Office under
Clause 13 (Tax
gross-up and indemnities) or Clause 14 (Increased
Costs),
|
136
then the
New Lender or Lender acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
|
26.3
|
Assignment or Transfer
Fee
|
The New
Lender shall, on the date upon which an assignment or transfer takes effect, pay
to the COFACE Agent (for its own account) a fee of two thousand Dollars
(US$2,000).
|
26.4
|
Limitation of Responsibility of
Existing Lenders
|
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other
documents;
|
|
|
(ii)
|
the
financial condition of the Borrower or the status of the
Project;
|
|
|
(iii)
|
the
performance and observance by the Borrower of its obligations under the
Finance Documents or any other documents;
or
|
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
and any
representations or warranties implied by law are excluded.
|
|
(b)
|
Each
New Lender confirms to the Existing Lender and the other Finance Parties
that it:
|
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it by the
Existing Lender in connection with any Finance Document;
and
|
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
|
(i)
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 26;
or
|
137
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
|
26.5
|
Procedure for
Transfer
|
|
|
(a)
|
Subject
to the conditions set out in Clause 26.2 (Conditions of Assignment or
Transfer) a transfer is effected in accordance with
paragraph (c) below when the COFACE Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and
the New Lender and updates the Register (as defined in Clause 26.8
(Register) below)
in accordance with the provisions of Clause 26.8 (Register)
below. The COFACE Agent shall, subject to paragraph (b)
below, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer
Certificate.
|
|
|
(b)
|
The
COFACE Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary “know your customer” or
other similar checks under all applicable laws and regulations in relation
to the transfer to such New Lender.
|
|
|
(c)
|
On
the Transfer Date:
|
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents each of the Obligors and the Existing Lender shall be released
from further obligations towards one another under the Finance Documents
and their respective rights against one another under the Finance
Documents shall be cancelled (being the “Discharged Rights and
Obligations”);
|
|
|
(ii)
|
the
Borrower and the New Lender shall assume obligations towards one another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and the New Lender
have assumed and/or acquired the same in place of that Obligor and the
Existing Lender;
|
|
|
(iii)
|
the
COFACE Agent, the Security Agent, each Mandated Lead Arranger, the New
Lender and other Lenders shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that extent
the COFACE Agent, each Mandated Lead Arranger, the Security Agent and the
Existing Lender shall each be released from further obligations to each
other under the Finance Documents;
and
|
|
|
(iv)
|
the
New Lender shall become a Party as a “Lender”.
|
138
|
|
(d)
|
For
the avoidance of doubt, for the purposes of article 1278 of
the French Civil Code and only in relation to the Pledge of Bank Accounts,
it is expressly agreed that the Pledge of Bank Accounts shall be preserved
for the benefit of the New Lender and all other Finance
Parties.
|
|
26.6
|
Copy of Transfer Certificate to
Borrower
|
The
COFACE Agent shall, as soon as reasonably practicable after it has executed a
Transfer Certificate, send to the Borrower a copy of that Transfer
Certificate.
|
26.7
|
Disclosure of
information
|
Any
Lender may disclose to any of its Affiliates and any other person:
|
|
(a)
|
to
(or through) whom that Lender assigns or transfers (or may potentially
assign or 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)
any sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, this Agreement or any Obligor;
or
|
|
|
(c)
|
to
whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation,
|
any
information about the Borrower, Thermo, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has entered
into a Confidentiality Undertaking.
|
26.8
|
Register
|
|
|
(a)
|
The
Borrower hereby designates the COFACE Agent, and the COFACE Agent agrees,
to serve as the Borrower’s agent, solely for purposes of this
Clause 26.8, to maintain a register (the “Register”) on which it
will record the Commitments from time to time of each of the Lenders and
each repayment in respect of the principal amount of the Loans of each
Lender.
|
|
|
(b)
|
Failure
to make any such recordation, or any error in such recordation shall not
affect the Borrower’s obligations in respect of such
Loans.
|
|
|
(c)
|
With
respect to any Lender, the transfer or assignment of the Commitments of
such Lender and the rights to the principal of, and interest on, any Loan
made pursuant to such Commitments shall not be effective
until:
|
|
|
(i)
|
the
Transfer Certificate has been executed by the COFACE Agent;
and
|
|
|
(ii)
|
such
transfer is recorded on the Register maintained by the COFACE Agent with
respect to ownership of such Commitments and Loans. Prior to
such recordation all amounts owing to the transferor with respect to such
Commitments and Loans shall remain owing to the
transferor.
|
139
|
|
(d)
|
The
registration of an assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the COFACE Agent on the
Register only upon the acceptance by the COFACE Agent of a properly
executed and delivered Transfer Certificate pursuant to this
Clause 26.8.
|
|
|
(e)
|
The
Borrower agrees to indemnify the COFACE Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature which may be
imposed upon, asserted against or incurred by the COFACE Agent in
performing its duties under this Clause 26.8 except to the extent
resulting from the gross negligence or wilful misconduct of the COFACE
Agent (as determined by a court of competent jurisdiction in a final and
non-appealable decision).
|
|
27.
|
CHANGES
TO THE BORROWER
|
The
Borrower may not assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
|
28.
|
ROLE
OF THE COFACE AGENT, THE SECURITY AGENT AND THE MANDATED LEAD
ARRANGERS
|
|
28.1
|
Appointment of the COFACE Agent
and the Security Agent
|
|
|
(a)
|
Each
other Finance Party (other than the Security Agent) appoints the COFACE
Agent to act as its agent under and in connection with the Finance
Documents.
|
|
|
(b)
|
Each
other Finance Party (other than the COFACE Agent) appoints the Security
Agent to act as its security agent and security trustee under and in
connection with the Finance
Documents.
|
|
|
(c)
|
Each
other Finance Party authorises the COFACE Agent and the Security Agent to
exercise the rights, powers, authorities and discretions specifically
given to the COFACE Agent and the Security Agent under or in connection
with the Finance Documents together with any other incidental rights,
powers, authorities and
discretions.
|
|
|
(d)
|
Each
other Finance Party (other than the COFACE Agent) appoints the Security
Agent to enforce any Security expressed to be created under the Security
Documents as agent (or as otherwise provided) on its behalf, subject
always to the terms of the Finance
Documents.
|
|
28.2
|
Appointment of the Security
Agent (France)
|
|
|
(a)
|
Each
Finance Party (other than the Security Agent) as “mandants” under French
law irrevocably:
|
|
|
(i)
|
appoints
the Security Agent to act as its agent (“mandataire” under
French law) under and in connection with the Borrower Pledge of Bank
Accounts, the Thermo Pledge of Bank Account and each Delegation Agreement
(the “French Security
Documents”); and
|
140
|
|
(ii)
|
authorises
the Security Agent to execute for and on its behalf the French Security
Documents and to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in connection
with the French Security Documents, together with any other rights, powers
and discretions which are incidental thereto and to give a good discharge
for any moneys payable under the French Security
Documents.
|
|
|
(b)
|
The
Security Agent will act solely for itself and as agent for the other
Finance Parties in carrying out its functions as agent under the French
Security Documents.
|
|
|
(c)
|
The
relationship between the Finance Parties (other than the Security Agent)
and the Security Agent is that of principal (“mandant” under French
law) and agent (“mandataire” under
French law) only. The Security Agent shall not have, nor be
deemed to have, assumed any obligations to, or trust or fiduciary
relationship with, any party to this Agreement other than those for which
specific provision is made by the French Security Documents and, to the
extent permissible under French law, the other provisions of this
Agreement, which shall be deemed to be incorporated in this
Clause 28.2, where reference is made to the French Security
Documents.
|
|
|
(d)
|
Notwithstanding
Clause 39 (Governing law), this
Clause 28.2 shall be governed by, and construed in accordance with,
French law. Notwithstanding Clause 40.1 (Jurisdiction), any
dispute arising out of this Clause 28.2 shall be submitted to the
Tribunal de Commerce de
Paris.
|
|
|
(e)
|
Each
Finance Party, the Security Agent and the Borrower irrevocably acknowledge
that the existence and extent of the Security Agent’s authority resulting
from this Clause 28.2 and the effects of the Security Agent’s
exercise of this authority shall be governed by French
law.
|
|
28.3
|
Duties of the COFACE Agent and
the Security Agent
|
|
|
(a)
|
Each
of the COFACE Agent and the Security Agent shall promptly forward to a
Party the original or a copy of any document which is delivered to the
COFACE Agent or the Security Agent for that Party by any other
Party.
|
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, neither the
COFACE Agent nor the Security Agent is obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to another
Party.
|
|
|
(c)
|
If
the COFACE Agent or the Security Agent receives notice from a Party
referring to this Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify the Finance
Parties.
|
|
|
(d)
|
If
the 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
COFACE Agent, the Security Agent or a Mandated Lead Arranger) under this
Agreement it shall promptly notify the other Finance
Parties.
|
141
|
|
(e)
|
The
COFACE Agent’s and the Security Agent’s duties under the Finance Documents
are solely mechanical and administrative in
nature.
|
|
28.4
|
Role of the Mandated Lead
Arrangers
|
Except as
specifically provided in the Finance Documents, no Mandated Lead Arranger has
any obligations of any kind to any other Party under or in connection with any
Finance Document.
|
28.5
|
No Fiduciary
Duties
|
|
|
(a)
|
Nothing
in this Agreement constitutes the COFACE Agent, the Security Agent (except
as expressly provided in the Finance Documents) or a Mandated Lead
Arranger as a trustee or fiduciary of any other
person.
|
|
|
(b)
|
Neither
the COFACE Agent, the Security Agent (except as expressly provided in the
Finance Documents) nor the Mandated Lead Arrangers shall be bound to
account to any Lender for any sum or the profit element of any sum
received by it for its own account.
|
|
28.6
|
Business with the
Group
|
The
COFACE Agent, the Security Agent and the Mandated Lead Arrangers may accept
deposits from, lend money to and generally engage in any kind of banking or
other business with any member of the Group.
|
28.7
|
Rights and Discretions of the
COFACE Agent and the Security
Agent
|
|
|
(a)
|
Each
of the COFACE Agent and the Security Agent may rely
on:
|
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
|
(b)
|
Each
of the COFACE Agent and the Security Agent may assume (unless it has
received notice to the contrary in its capacity as agent for the Lenders)
that:
|
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default arising
under Clause 23.1 (Non-Payment));
|
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and
|
|
|
(iii)
|
any
notice or request made by the Borrower (other than a Utilisation Request)
is made on behalf of and with the consent and knowledge of the
Borrower.
|
142
|
|
(c)
|
Each
of the COFACE Agent and the Security Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or other
experts.
|
|
|
(d)
|
Each
of the COFACE Agent and the Security Agent may act in relation to the
Finance Documents through its personnel and
agents.
|
|
|
(e)
|
Each
of the COFACE Agent and the Security Agent may disclose to any other Party
any information it reasonably believes it has received as agent under this
Agreement.
|
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
COFACE Agent, the Security Agent nor a Mandated Lead Arranger is obliged
to do or omit to do anything if it would or might in its reasonable
opinion constitute a breach of any law or a breach of a fiduciary duty or
duty of confidentiality.
|
|
|
(g)
|
Save
as expressly otherwise provided in any Finance Document, the Security
Agent may exercise its trusts, powers and authorities under the Finance
Documents in its absolute and unconditional
discretion.
|
|
28.8
|
Majority Lenders’
Instructions
|
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, each of the COFACE
Agent and the Security Agent shall:
|
|
|
(i)
|
exercise
any right, power, authority or discretion vested in it in accordance with
any instructions given to it by the Majority Lenders (or, if so instructed
by the Majority Lenders, refrain from exercising any right, power,
authority or discretion vested in it);
and
|
|
|
(ii)
|
not
be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Majority
Lenders.
|
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
|
(c)
|
Each
of the COFACE Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders) until it has received such security as it may
require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the
instructions.
|
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) each of the COFACE Agent and the Security Agent
may act (or refrain from taking action) as it considers to be in the best
interest of the Lenders.
|
|
|
(e)
|
Neither
the COFACE Agent nor the Security Agent is authorised to act on behalf of
a Lender (without first obtaining that Lender’s consent) in any legal or
arbitration proceedings relating to any Finance
Document.
|
143
|
|
(f)
|
The
Security Agent may assume (unless it has received notice to the contrary
in its capacity as Security Agent) that all instructions given to it by
the COFACE Agent, if required to be approved by the Majority Lenders, have
been so approved.
|
|
28.9
|
Responsibility for
Documentation
|
None of
the COFACE Agent, the Security Agent nor a Mandated Lead Arranger:
|
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the COFACE Agent, the
Security Agent, a Mandated Lead Arranger, the Borrower or any other person
given in or in connection with any Finance Document;
or
|
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in
connection with any Finance
Document.
|
|
28.10
|
Exclusion of
Liability
|
|
|
(a)
|
Without
limiting paragraph (b), neither the COFACE Agent nor the Security
Agent will be liable (including, without limitation, for negligence or any
other category of liability whatsoever) for any action taken by it under
or in connection with any Transaction Document, unless directly caused by
its gross negligence or wilful
misconduct.
|
|
|
(b)
|
No
Party (other than the COFACE Agent or the Security Agent) may take any
proceedings against any officer, employee or agent of the COFACE Agent or
the Security Agent in respect of any claim it might have against the
COFACE Agent or the Security Agent or in respect of any act or omission of
any kind by that officer, 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 this Clause subject to Clause 1.5 (Third Party Rights) and
the provisions of the Third Parties
Act.
|
|
|
(c)
|
Neither
the COFACE Agent nor the Security Agent will be liable for any delay (or
any related consequences) in crediting an account with an amount required
under the Finance Documents to be paid by it if it has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used
by it for that purpose.
|
|
|
(d)
|
Nothing
in this Agreement shall oblige the COFACE Agent, the Security Agent or a
Mandated Lead Arranger to carry out any “know your customer” or
other checks in relation to any person on behalf of any Lender and each
Lender confirms to the COFACE Agent, the Security Agent and each Mandated
Lead Arranger that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in
relation to such checks made by the COFACE Agent, the Security Agent and a
Mandated Lead Arranger.
|
144
|
28.11
|
Lenders’ Indemnity to the
COFACE Agent and the Security
Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify each of the COFACE Agent
and the Security Agent, within three (3) Business Days of demand, against
any cost, loss or liability (including, without limitation, for negligence or
any other category of liability whatsoever) incurred by the COFACE Agent and the
Security Agent (otherwise than by reason of its gross negligence or wilful
misconduct) notwithstanding its negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the fraud
of the COFACE Agent or the Security Agent in acting as COFACE Agent or the
Security Agent under the Finance Documents (unless the COFACE Agent or the
Security Agent has been reimbursed by the Borrower pursuant to a Finance
Document).
|
28.12
|
Resignation of the COFACE Agent
and the Security Agent
|
|
|
(a)
|
Each
of the COFACE Agent and the Security Agent may resign and appoint one of
its Affiliates as successor by giving notice to the other Finance Parties
and the Borrower.
|
|
|
(b)
|
Alternatively
each of the COFACE Agent and the Security Agent may resign by giving
notice to the other Finance Parties and the Borrower, in which case the
Majority Lenders (after consultation with the Borrower) may appoint a
successor COFACE Agent or Security Agent (as the case may
be).
|
|
|
(c)
|
If
the Majority Lenders have not appointed a successor COFACE Agent or
Security Agent in accordance with Clause 28.12(b) within thirty
(30) days after notice of resignation was given, the COFACE Agent or
the Security Agent (after consultation with the Borrower) may appoint a
successor COFACE Agent or Security
Agent.
|
|
|
(d)
|
The
retiring COFACE Agent or Security Agent shall, at its own cost, make
available to its successor such documents and records and provide such
assistance as its successor may reasonably request for the purposes of
performing its functions as COFACE Agent or Security Agent under the
Finance Documents.
|
|
|
(e)
|
The
COFACE Agent’s resignation notice shall only take effect upon the
appointment of a successor.
|
|
|
(f)
|
The
Security Agent’s resignation notice shall only take effect
upon:
|
|
|
(i)
|
the
appointment of a successor; and
|
|
|
(ii)
|
the
transfer of all of any Lien expressed to be created under the Security
Documents to that successor.
|
|
|
(g)
|
Upon
the appointment of a successor, the retiring COFACE Agent or Security
Agent shall be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of this
Clause 28.12. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original
Party.
|
145
|
|
(h)
|
After
consultation with the Borrower, the Majority Lenders may, by notice to the
COFACE Agent or the Security Agent (as the case may be), require it to
resign in accordance with Clause 28.12(a). In this event,
the COFACE Agent or the Security Agent (as the case may be) shall resign
in accordance with
Clause 28.12(a).
|
|
28.13
|
Confidentiality
|
|
|
(a)
|
In
acting as agent for the Finance Parties, each of the COFACE Agent and the
Security Agent shall be regarded as acting through its agency division
which shall be treated as a separate entity from any other of its
divisions or departments.
|
|
|
(b)
|
If
information is received by another division or department of the COFACE
Agent or the Security Agent, it may be treated as confidential to that
division or department and neither the COFACE Agent nor the Security Agent
shall be deemed to have notice of
it.
|
|
28.14
|
Relationship with the
Lenders
|
|
|
(a)
|
The
COFACE Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five (5) Business Days prior notice from that
Lender to the contrary in accordance with the terms of this
Agreement.
|
|
|
(b)
|
Each
Lender shall supply the COFACE Agent with any information required by the
COFACE Agent in order to calculate the Mandatory Cost in accordance with
Schedule 4 (Mandatory
Cost Formula).
|
|
28.15
|
Credit Appraisal by the
Lenders
|
Without
affecting the responsibility of the Borrower for information supplied by it or
on its behalf in connection with any Finance Document, each Lender confirms to
the COFACE Agent, the Security Agent and the Mandated Lead Arrangers that it has
been, and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with any
Finance Document including but not limited to:
|
|
(a)
|
the
financial condition, status and nature of the
Group;
|
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;
|
|
|
(c)
|
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any
Finance Document; and
|
146
|
|
(d)
|
the
adequacy, accuracy and/or completeness of any information provided by the
COFACE Agent, the Security Agent, any Party or by any other person under
or in connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection
with any Finance Document.
|
|
28.16
|
Reference
Banks
|
If a
Reference Bank who is also a Lender (or, if a Reference Bank is not a Lender,
the Lender of which it is an Affiliate) ceases to be a Lender, the COFACE Agent
shall (in consultation with the Borrower) appoint another Lender or an Affiliate
of a Lender to replace that Reference Bank.
|
28.17
|
COFACE Agent’s and Security
Agent’s Management Time
|
Any
amounts payable to the COFACE Agent or the 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 the COFACE Agent’s or the Security Agent’s
management time or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as the COFACE Agent or the Security Agent may
notify to the Borrower and the Lenders.
|
28.18
|
Deduction from Amounts Payable
by the COFACE Agent and the Security
Agent
|
If any
Party owes an amount to the COFACE Agent or the Security Agent under the Finance
Documents, the COFACE Agent or the Security Agent (as the case may be) may,
after giving notice to that Party and provided that this will not
result in breach of any applicable currency control regulations by the Borrower,
deduct an amount not exceeding that amount from any payment to that Party which
the COFACE Agent or the Security Agent would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed. For the purposes of the Finance Documents, that
Party shall be regarded as having received any amount so deducted.
|
28.19
|
Security
Agent
|
|
|
(a)
|
The
provisions of Schedule 6 (The Security Agent))
shall bind each Party.
|
|
|
(b)
|
The
Security Agent shall promptly transfer to the COFACE Agent any amounts
received by it under the Finance Documents for application by the COFACE
Agent in accordance with the order set out in Clause 31.6 (Partial
Payments). The Security Agent shall be obliged to make
such transfer only to the extent it has actually received such
amount.
|
147
|
|
(c)
|
At
the request of the Security Agent, the COFACE Agent shall notify the
Security Agent, and shall provide a copy of such notification to the
Borrower, of amounts due to any Party under this Agreement, and the due
date for such amounts. The Security Agent may accept such
notifications as conclusive evidence of the matters to which they
relate.
|
|
28.20
|
No Independent
Power
|
|
|
(a)
|
The
Lenders 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 to exercise any rights or powers arising under the Security Documents
except through the Security Agent.
|
|
|
(b)
|
This
Clause is for the benefit of the Finance Parties
only.
|
|
29.
|
CONDUCT
OF BUSINESS BY THE FINANCE PARTIES
|
No
provision of this Agreement will:
|
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or
|
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of
Tax.
|
|
30.
|
SHARING
AMONG THE FINANCE PARTIES
|
|
30.1
|
Payments to Finance
Parties
|
If a
Finance Party (a “Recovering
Finance Party”) receives or recovers any amount from an Obligor other
than in accordance with Clause 31 (Payment Mechanics) and
applies that amount to a payment due under the Finance Documents
then:
|
|
(a)
|
the
Recovering Finance Party shall, within three (3) Business Days,
notify details of the receipt or recovery, to the COFACE
Agent;
|
|
|
(b)
|
the
COFACE Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had the
receipt or recovery been received or made by the COFACE Agent and
distributed in accordance with Clause 31 (Payment Mechanics),
without taking account of any Tax which would be imposed on the COFACE
Agent in relation to the receipt, recovery or distribution;
and
|
|
|
(c)
|
the
Recovering Finance Party shall, within three (3) Business Days of
demand by the COFACE Agent, pay to the COFACE Agent an amount (the “Sharing Payment”) equal
to such receipt or recovery less any amount which the Agent determines may
be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with Clause 31.6 (Partial
Payments).
|
148
|
30.2
|
Redistribution of
Payments
|
The
COFACE Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than the
Recovering Finance Party) in accordance with Clause 31.6 (Partial
Payments).
|
30.3
|
Recovering Finance Party’s
Rights
|
|
|
(a)
|
On
a distribution by the COFACE Agent under Clause 30.2 (Redistribution of
Payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
|
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be
liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and
payable.
|
|
30.4
|
Reversal of
Redistribution
|
If any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
|
(a)
|
each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 30.2 (Redistribution of
Payments) shall, upon request of the COFACE Agent, pay to the
COFACE Agent for account of that Recovering Finance Party an amount equal
to the appropriate part of its share of the Sharing Payment (together with
an amount as is necessary to reimburse that Recovering Finance Party for
its proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay);
and
|
|
|
(b)
|
that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Finance Party for the amount so
reimbursed.
|
|
30.5
|
Exceptions
|
|
|
(a)
|
This
Clause 30 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against the relevant
Obligor.
|
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
|
(i)
|
it
notified that other Finance Party of the legal or arbitration proceedings;
and
|
|
|
(ii)
|
that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
149
|
31.
|
PAYMENT
MECHANICS
|
|
31.1
|
Payments to the COFACE
Agent
|
|
|
(a)
|
On
each date on which the Borrower or a Lender is required to make a payment
under a Finance Document (subject to Clause 31.12 (Payments to the Security
Agent), the Borrower or Lender shall make the same available to the
COFACE Agent (unless a contrary indication appears in a Finance Document)
for value on the due date at the time and in such funds specified by the
COFACE Agent as being customary at the time for settlement of transactions
in the relevant currency in the place of
payment.
|
|
|
(b)
|
All
payments to be made by the Borrower under this Agreement shall be made in
Dollars in immediately available funds to the account of the COFACE Agent
with account No. 20019409300136
with BNP Paribas S.A., The Equitable Building, 787 Seventh Avenue,
New York, SWIFT code XXXXXX0XXXX, in favour of BNP PARIBAS LSI-BOCI,
000, Xxx xx Xxxxxxxx Xxxxxxxxxxxx 00000 XXXXXXXXXX code XXXXXXXXXXX,
or to such other account as the COFACE Agent may from time to time
designate to the Borrower in
writing.
|
|
|
(c)
|
For
any payment to be made by the Borrower, the Borrower shall ensure that the
COFACE Agent receives a swift advice of such payment from the Borrower’s
bank no later than the Business Day immediately preceding the date of such
payment. The swift message shall be sent to XXXXXXXXXXX
attention BOCI Buyers Credits with references USA/GLOBALSTAR/Loan
Agreement dated 5 June 2009 or such other account in the principal
financial centre of the country of that currency with such bank as the
COFACE Agent specifies.
|
|
31.2
|
Evidence of Financial
Indebtedness
|
|
|
(a)
|
Each
Loan made by a Lender shall be evidenced by one (1) or more accounts
or records maintained by such Lender and by the COFACE Agent in the
ordinary course of business. The accounts or records maintained
by the COFACE Agent and each Lender shall be conclusive absent manifest
error of the amount of any Loan made by the Lenders to the Borrower and
the interest and payments thereon.
|
|
|
(b)
|
Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower under this Agreement to
pay any amount owing with respect to the Obligations. If there
is any conflict between the accounts and records maintained by any Lender
and the accounts and records of the COFACE Agent in respect of such
matters, the accounts and records of the COFACE Agent shall control in the
absence of manifest error.
|
|
|
(c)
|
Upon
the request of any Lender or COFACE made through the COFACE Agent, the
Borrower shall immediately execute and deliver to the COFACE Agent
Promissory Notes which shall be in accordance with the Repayment Schedule
previously provided by the Borrower to the Lenders and shall evidence all
outstanding Loans (including principal and interest). Each
Promissory Note shall be denominated in Dollars and be payable in
accordance with Clause 31 (Payment
Mechanics). The Borrower shall ensure that each
Promissory Note shall be governed by English or French law (as selected by
the COFACE Agent) and the Borrower waives any right of protest under any
Promissory Note to the extent possible under applicable
law.
|
|
|
(d)
|
Any
payment which is due to be made under a Promissory Note that is not a
Business Day shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is
not).
|
|
|
(e)
|
If
paragraph (d) above applies, interest shall be payable on the principal up
to the date of actual payment by the
Borrower.
|
|
|
(f)
|
Neither
the payment date nor the amount of principal and interest specified in the
relevant Promissory Note (if any) shall be
modified. Notwithstanding that the Promissory Note shall not be
modified, the Borrower shall be obliged to make payment in full (including
principal and accrued interest) to the COFACE Agent in accordance with the
provisions of this Clause 31 (Payment Mechanics).
Notwithstanding the foregoing, the COFACE Agent and the Lenders hereby
agree not to demand payment under any Promissory Note prior to exercising
its rights pursuant to Clause 24 (Remedies upon an Event of
Default).
|
|
|
(g)
|
If
paragraph (d) applies, at least thirty (30) days prior to any payment
under a note the payment date of which has been extended in accordance
with paragraph (d) above, the COFACE Agent shall send to the Borrower a
written statement documenting the additional amount of interest owed by
the Borrower at such payment date.”
|
150
|
31.3
|
Distributions by the COFACE
Agent
|
Each
payment received by the COFACE Agent under the Finance Documents for another
Party shall, subject to Clause 31.4 (Distributions to the
Borrower) and Clause 31.5 (Clawback) and
Clause 31.12 (Payments to
the Security Agent), be made available by the COFACE Agent as soon as
practicable after receipt to the Party entitled to receive payment in accordance
with this Agreement (in the case of a Lender, for the account of its Facility
Office), to such account as that Party may notify to the COFACE Agent by not
less than five (5) Business Days’ notice with a bank in the principal
financial centre of the country of that currency.
|
31.4
|
Distributions to 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 Obligor in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that Obligor under the
Finance Documents or in or towards purchase of any amount of any currency to be
so applied.
|
31.5
|
Clawback
|
|
|
(a)
|
Where
a sum is to be paid to the COFACE Agent or the Security Agent under the
Finance Documents for another Party, the COFACE Agent is not obliged to
pay that sum to that 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 actually received that
sum.
|
|
|
(b)
|
If
the COFACE Agent or the Security Agent pays an amount to another Party and
it proves to be the case that the COFACE Agent had not actually received
that amount, then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the COFACE Agent or the Security
Agent shall on demand refund the same to the COFACE Agent together with
interest on that amount from the date of payment to the date of receipt by
the COFACE Agent or the Security Agent, calculated by it to reflect its
cost of funds.
|
|
31.6
|
Partial
Payments
|
|
|
(a)
|
If
the COFACE Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance
Documents, the COFACE Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the following
order:
|
|
|
(i)
|
first,
in or towards payment pro rata of any unpaid
fees, costs and expenses of the COFACE Agent, the Security Agent or the
Mandated Lead Arrangers under the Finance
Documents;
|
151
|
|
(ii)
|
secondly,
in or towards payment pro rata of any accrued
interest, fee or commission due to the Finance Parties but unpaid under
this Agreement;
|
|
|
(iii)
|
thirdly,
in or towards payment pro rata of any
principal due but unpaid under this Agreement;
and
|
|
|
(iv)
|
fourthly,
in or towards payment pro rata of any other
sum due but unpaid under the Finance
Documents.
|
|
|
(b)
|
The
COFACE Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv)
above.
|
|
|
(c)
|
Paragraphs (a)
and (b) above will override any appropriation made by an
Obligor.
|
|
31.7
|
No set-off by the
Borrower
|
All
payments to be made by the Borrower under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
|
31.8
|
Business
Days
|
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is
not).
|
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due
date.
|
|
31.9
|
Currency of
Account
|
|
|
(a)
|
Subject
to paragraphs (b) and (c) below, Dollars is the currency of account
and payment for any sum due from the Borrower under any Finance
Document.
|
|
|
(b)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
|
(c)
|
Any
amount expressed to be payable in a currency other than Dollars shall be
paid in that other currency.
|
|
31.10
|
Change of
Currency
|
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency unit
are at the same time recognised by the central bank of any country as the
lawful currency of that country,
then:
|
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the COFACE Agent (after consultation with the Borrower);
and
|
152
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or
down by the COFACE Agent (acting
reasonably).
|
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will, to the
extent the COFACE Agent (acting reasonably and after consultation with the
Borrower) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the London interbank
market and otherwise to reflect the change in
currency.
|
|
31.11
|
Disruption to Payment Systems
etc.
|
If either
the COFACE Agent determines (in its discretion) that a Disruption Event has
occurred or the COFACE Agent is notified by the Borrower that a Disruption Event
has occurred:
|
|
(a)
|
the
COFACE Agent may, and shall if requested to do so by the Borrower, consult
with the Borrower with a view to agreeing with the Borrower such changes
to the operation or administration of the Facility as the COFACE Agent may
deem necessary in the
circumstances;
|
|
|
(b)
|
the
COFACE Agent shall not be obliged to consult with the Borrower in relation
to any changes mentioned in paragraph (a) if, in its opinion, it is
not practicable to do so in the circumstances and, in any event, shall
have no obligation to agree to such
changes;
|
|
|
(c)
|
the
COFACE Agent may consult with the Finance Parties in relation to any
changes mentioned in paragraph (a) but shall not be obliged to do so
if, in its opinion, it is not practicable to do so in the
circumstances;
|
|
|
(d)
|
any
such changes agreed upon by the COFACE Agent and the Borrower shall
(whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the case
may be, waiver of) the terms of the Finance Documents notwithstanding the
provisions of Clause 37 (Amendments and
waivers);
|
|
|
(e)
|
the
COFACE Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross negligence
or any other category of liability whatsoever but not including any claim
based on the fraud of the COFACE Agent) arising as a result of its taking,
or failing to take, any actions pursuant to or in connection with this
Clause 31.11 (Disruption to Payment Systems
etc.); and
|
|
|
(f)
|
the
COFACE Agent shall notify the Finance Parties of all changes agreed
pursuant to paragraph (d)
above.
|
153
|
31.12
|
Payments to the Security
Agent
|
Notwithstanding
any other provision of any Finance Document, after a notice has been given to
the Borrower under Clause 24 (Remedies Upon an Event of
Default), and at any time after any Liens created by or pursuant to any
Security Document becomes enforceable, the Security Agent may require the
Borrower to pay all sums due under any Finance Document as the Security Agent
may direct for application in accordance with the terms of the Security
Documents.
|
32.
|
SET-OFF
|
If an
Event of Default has occurred and is continuing, a Finance Party may set-off any
matured obligation due from an Obligor under the Finance Documents (to the
extent beneficially owned by that Finance Party) against any matured obligation
owed by that Finance Party to that Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations
are in different currencies, the Finance Party may convert either obligation at
a market rate of exchange in its usual course of business for the purpose of the
set-off. Following the exercise of a right of set-off under this
Agreement, the relevant Finance Party shall notify the Borrower.
|
33.
|
NOTICES
|
|
33.1
|
Communications in
Writing
|
Any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
|
33.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
|
|
(a)
|
in
the case of the Borrower, that identified with its name
below;
|
|
|
(b)
|
in
the case of each Lender, that notified in writing to the COFACE Agent on
or prior to the date on which it becomes a Party;
and
|
|
|
(c)
|
in
the case of the COFACE Agent and the Security Agent, that identified with
its name below,
|
or any
substitute address or fax number or department or officer as the Party may
notify to the COFACE Agent (or the COFACE Agent may notify to the other Parties,
if a change is made by the COFACE Agent) by not less than five (5) Business
Days’ notice.
|
33.3
|
Delivery
|
|
|
(a)
|
Any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective:
|
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
154
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or five
(5) Business Days after being deposited in the post postage prepaid
in an envelope addressed to it at that
address;
|
and, if a
particular department or officer is specified as part of its address details
provided under Clause 33.2 (Addresses), if addressed to
that department or officer.
|
|
(b)
|
Any
communication or document to be made or delivered to the COFACE Agent, the
Security Agent or the Mandated Lead Arrangers will be effective only when
actually received by the COFACE Agent, the Security Agent or such Mandated
Lead Arranger and then only if it is expressly marked for the attention of
the department or officer identified with the COFACE Agent’s, the Security
Agent’s or such Mandated Lead Arranger’s signature below (or any
substitute department or officer as the COFACE Agent, the Security Agent
or such Mandated Lead Arranger shall specify for this
purpose).
|
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the COFACE
Agent.
|
|
|
(d)
|
Any
communication or document made or delivered to the Borrower in accordance
with this Clause will be deemed to have been made or delivered to each of
the Obligors.
|
|
33.4
|
Notification of Address and Fax
Number
|
Promptly
upon receipt of notification of an address or fax number or change of address or
fax number pursuant to Clause 33.2 (Addresses) or changing its
own address or fax number, the COFACE Agent shall notify the other
Parties.
|
33.5
|
Electronic
Communication
|
|
|
(a)
|
Any
communication to be made between the COFACE Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the COFACE Agent and the relevant
Lender:
|
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an accepted
form of communication;
|
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
|
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
|
(b)
|
Any
electronic communication made between the COFACE Agent and a Lender will
be effective only when actually received in readable form and in the case
of any electronic communication made by a Lender to the COFACE Agent only
if it is addressed in such a manner as the COFACE Agent shall specify for
this purpose.
|
155
|
33.6
|
English
Language
|
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must be in
English.
|
|
|
(b)
|
All
other documents provided under or in connection with any Finance Document
must be:
|
|
|
(i)
|
in
English; or
|
|
|
(ii)
|
if
not in English, and if so required by the COFACE Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.
|
|
34.
|
CALCULATIONS
AND CERTIFICATES
|
|
34.1
|
Accounts
|
In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance Party
are prima facie
evidence of the matters to which they relate.
|
34.2
|
Certificates and
Determinations
|
Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
|
34.3
|
Day Count
Convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of three hundred and sixty (360) days or, in any case where the
practice in the London interbank market differs, in accordance with that market
practice.
|
35.
|
PARTIAL
INVALIDITY
|
If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
|
36.
|
REMEDIES
AND WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by
law.
156
|
37.
|
AMENDMENTS
AND WAIVERS
|
|
37.1
|
Required
Consents
|
|
|
(a)
|
Subject
to Clause 37.2 (Exceptions) any term of
the Finance Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and following consultation by the
COFACE Agent with COFACE. Any such amendment or waiver will be
binding on all Parties.
|
|
|
(b)
|
The
COFACE Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
|
|
37.2
|
Exceptions
|
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
|
(i)
|
the
definition of “Majority
Lenders” in Clause 1.1 (Definitions);
|
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
|
|
(iii)
|
a
reduction in the Applicable Margin or a reduction in the amount of any
payment of principal, interest, fees or commission
payable;
|
|
|
(iv)
|
an
increase in or an extension of any
Commitment;
|
|
|
(v)
|
a
change to an Obligor;
|
|
|
(vi)
|
any
provision 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 this Clause 37;
|
|
|
(viii)
|
the
nature or scope of the assets of the Borrower which from time to time are,
or are expressed to be, the subject of a Lien under the Security
Documents; or
|
|
|
(ix)
|
the
release of any Lien granted in accordance with the Security Documents or
the granting of any Lien required under the terms of this
Agreement,
|
shall not
be made without the prior consent of all the Lenders.
|
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of the
COFACE Agent, the Security Agent, and/or a Mandated Lead Arranger may not
be effected without the consent of the COFACE Agent, the Security Agent,
and/or the Mandated Lead Arranger (as the case may
be).
|
157
|
38.
|
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of
the Finance Document.
|
39.
|
GOVERNING
LAW
|
This
Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.
|
40.
|
ENFORCEMENT
|
|
40.1
|
Jurisdiction
|
|
|
(a)
|
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
relating to the existence, validity or termination of this Agreement or
any non-contractual obligation arising out of or in connection with this
Agreement) (a “Dispute”).
|
|
|
(b)
|
The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary.
|
|
|
(c)
|
This
Clause 40.1 (Jurisdiction) is for
the benefit of the Finance Parties only. As a result, no
Finance Party shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent proceedings in any
number of jurisdictions.
|
|
40.2
|
Service of
Process
|
Without
prejudice to any other mode of service allowed under any relevant law, the
Borrower:
|
|
(a)
|
irrevocably
appoints WFW Legal Services Limited of 00 Xxxxxx Xxxxxx, Xxxxxx XX0X
0XX as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document;
and
|
|
|
(b)
|
agrees
that failure by a process agent to notify the Borrower of the process will
not invalidate the proceedings
concerned.
|
|
40.3
|
Waiver of
Immunity
|
To the
extent that the Borrower may in any jurisdiction 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 there may be attributed to itself, its
assets or revenues such immunity (whether or not claimed), the Borrower
irrevocably agrees not to claim, and irrevocably waives, such immunity to the
full extent permitted by the laws of such jurisdiction.
158
SCHEDULE
1
LENDERS
AND COMMITMENTS
Part
A
Facility A
|
Facility A
Original Lenders
|
Facility A
Commitments US$
|
|
|
BNP
Xxxxxxx
|
000,000,000
|
|
|
Xxxxxxx
Xxxxxxxx
|
140,356,164
|
|
|
Natixis
|
116,963,470
|
|
|
Crédit
Agricole Corporate and Investment Bank (formerly Calyon)
|
93,570,776
|
|
|
Crédit
Industriel et Commercial
|
72,052,546
|
Part
B
Facility B
|
Facility B
Original Lenders
|
Facility B
Commitments US$
|
|
|
BNP
Paribas
|
5,741,550
|
|
|
Société
Générale
|
5,741,550
|
|
|
Natixis
|
4,784,626
|
|
|
Crédit
Agricole Corporate and Investment Bank (formerly Calyon)
|
3,827,700
|
|
|
Crédit
Industriel et Commercial
|
2,947,454
|
159
SCHEDULE
2
CONDITIONS
PRECEDENT
|
1.
|
OBLIGORS
|
|
|
(a)
|
A
copy of the constitutional documents of each
Obligor.
|
|
|
(b)
|
A
copy of a resolution of the board of directors of each
Obligor:
|
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Transaction
Documents to which it is a party and resolving that it execute the
Transaction Documents to which it is a
party;
|
|
|
(ii)
|
authorising
a specified person or persons to execute the Transaction Documents to
which it is a party on its behalf;
and
|
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices (including, if relevant, any Utilisation Request) to
be signed and/or despatched by it under or in connection with the
Transaction Documents to which it is a
party.
|
|
|
(c)
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph (b)
above.
|
|
|
(d)
|
A
certificate of each Obligor (other than Thermo) (signed by an authorised
signatory) confirming that the borrowing or guaranteeing, as appropriate,
contemplated by the Finance Documents would not cause any borrowing,
guaranteeing or similar limit binding on any Obligor (other than Thermo)
to be exceeded.
|
|
|
(e)
|
A
certificate from a Responsible Officer of the Borrower certifying that, as
of Financial Close:
|
|
|
(i)
|
each
copy document relating to an Obligor specified in this Schedule
2 (Conditions
Precedent) is correct, complete and in full force and effect
as at a date no earlier than the date of Financial
Close;
|
|
|
(ii)
|
all
representations and warranties of the Obligors contained in the Finance
Documents are true, correct and complete in all material respects (provided that, any
representation or warranty that is qualified by materiality or by
reference to Material Adverse Effect shall be true, correct and complete
in all respects);
|
|
|
(iii)
|
none
of the Obligors is in violation of any of the covenants contained in the
Finance Documents;
|
|
|
(iv)
|
after
giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing;
and
|
160
|
|
(v)
|
each
of the Obligors has satisfied each of the conditions set out in this Schedule
2 (Conditions
Precedent) and Clause 4.2 (Further Conditions
Precedent).
|
|
|
(f)
|
Certificates
as of a recent date of the good standing of each Obligor under the laws of
its jurisdiction of organisation and, to the extent requested by the
COFACE Agent, each other jurisdiction where such Obligor is qualified to
do business.
|
|
2.
|
LEGAL
OPINIONS
|
|
|
(a)
|
A
legal opinion of White & Case LLP (advisers to the Lenders) as to
matters of the laws of England and confirming, among other things, the
validity and enforceability of the Finance Documents governed by English
law).
|
|
|
(b)
|
A
legal opinion of White & Case LLP (advisers to the Lenders) as to
matters of the laws of France and confirming, among other things, the
validity and enforceability of the French Security
Documents.
|
|
|
(c)
|
A
legal opinion of Xxxx Xxxxxxxxxx & Hollister LLP (advisers to the
Borrower) confirming, among other things, the due authorisation of each
Obligor, no conflict with the convertible notes and the Relevant
Agreements, and confirming the validity and enforceability of those
Security Documents governed by New York
law.
|
|
|
(d)
|
A
legal opinion of Xxxxxx & Xxxxx (advisers to the Lenders) as to
matters of the laws of Texas and confirming, among other things, the
validity and enforceability of those Security Documents governed by Texas
law.
|
|
|
(e)
|
A
legal opinion of K&L Gates (advisers to the Lenders) as to matters of
the laws of Alaska and confirming, among other things, the validity and
enforceability of those Security Documents governed by Alaska
law.
|
|
|
(f)
|
A
legal opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP in respect of
each Obligor’s FCC Communications
Licences.
|
|
|
(g)
|
A
legal opinion of in-house counsel or external counsel of the Supplier
confirming, among other things, that the Supplier has been duly authorised
to enter into each of the Finance Documents to which it is a
party.
|
|
|
(h)
|
A
legal opinion of in-house counsel or external counsel of the Launch
Services Provider confirming, among other things, that the Launch Services
Provider has been duly authorised to enter into each of the Finance
Documents to which it is a party.
|
|
|
(i)
|
Such
other favourable legal opinions of counsel to the Obligors addressed to
the COFACE Agent (for and on behalf of itself and the other Finance
Parties) with respect to the Obligors, the Finance Documents and such
other matters as the COFACE Agent shall reasonably request, including,
without limitation, FCC matters.
|
161
|
3.
|
FINANCE
DOCUMENTS
|
An
original (duly executed by each of the parties thereto) of:
|
|
(a)
|
this
Agreement; and
|
|
|
(b)
|
each
of the other Finance Documents (other than the Mortgages and each Landlord
Waiver and Consent Agreement).
|
|
4.
|
PERSONAL
PROPERTY COLLATERAL
|
The
COFACE Agent shall have received:
|
|
(a)
|
original
stock certificates and other certificates evidencing the Capital Stock
pledged pursuant to the Security Documents, together with an undated stock
power for each such certificate duly executed in blank by the registered
owner thereof; and
|
|
|
(b)
|
each
original promissory note pledged pursuant to the Security
Documents.
|
|
5.
|
SECURITY
MATTERS
|
|
|
(a)
|
Certified
copies of all notices of assignment and/or charge required to be delivered
pursuant to the Security Documents.
|
|
|
(b)
|
Each
Obligor shall have duly authorised, executed and
delivered:
|
|
|
(i)
|
proper
financing statements (Form UCC-1 or such other financing statements or
similar notices as shall be required by local law) fully executed for
filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary to perfect a Lien purported to be created
by the Security Documents;
|
|
|
(ii)
|
certified
copies of requests for information or copies (Form UCC-11), or equivalent
reports, listing all judgement liens, tax liens or effective financing
statements that name the Obligors or any of their Subsidiaries, or a
division or other operating unit of any such person, as debtor and that
are filed in the jurisdictions referred to in paragraph (i) above,
together with copies of such other financing statements evidencing any
Lien permitted by Clause 22.2 (Limitations on
Liens);
|
|
|
(iii)
|
evidence
of the completion of all other recordings and filings of, or with respect
to, the Security Documents as may be necessary to perfect any Lien
intended to be created by the Security
Documents;
|
|
|
(iv)
|
each
irrevocable payment instruction (if any);
and
|
|
|
(v)
|
evidence
that all other actions necessary to perfect and protect any Lien purported
to be created by the Security Document have been
taken.
|
162
|
6.
|
GOVERNMENTAL
AND OTHER AUTHORISATIONS
|
The
Borrower has obtained, and provided to the COFACE Agent, certified copies of all
Authorisations listed in Schedule
15 (Communication
Licences) together with:
|
|
(a)
|
in
the case of paragraphs (i), (iii) and (iv) below, all other
Authorisations; and
|
|
|
(b)
|
in
the case of paragraph (ii) below, all other material
Authorisations,
|
in each
case, not listed in those clauses that may become necessary for:
|
|
(i)
|
each
Loan;
|
|
|
(ii)
|
the
business of the Borrower as it is presently carried on and is contemplated
to be carried out;
|
|
|
(iii)
|
the
due execution, delivery, validity and enforceability of, and performance
by an Obligor of its obligations under this Agreement and each other
Transaction Document to which it is a party, and any other documents
necessary or desirable to the implementation of any of those agreements or
documents; and
|
|
|
(iv)
|
the
remittance to any Finance Party (or its assigns) of all monies payable or
owing to such Finance Party (or its assigns) under any Finance Document in
the currencies specified in such Finance
Document,
|
and all
those Authorisations are in full force and effect.
|
7.
|
COMMERCIAL
CONTRACTS
|
The
following documents shall have been delivered to the COFACE
Agent:
|
|
(a)
|
a
copy, certified as true and complete by an Authorised Signatory of the
Supplier and the Launch Services Provider, of each Commercial
Contract;
|
|
|
(b)
|
a
certificate of incumbency and authority, signed by a director of the
Supplier and the Launch Services Provider specifying the names and titles
of each of the Authorised Signatories of the Supplier and the Launch
Services Provider:
|
|
|
(i)
|
whose
signature(s) appear on each Commercial Contract and Transaction Document
to which it is a party; and
|
|
|
(ii)
|
who
shall sign all other certificates (including each Qualifying Certificate),
notices and documents referred to in this Agreement on behalf of the
Supplier and the Launch Services Provider (as the case may
be);
|
|
|
(c)
|
a
certificate, signed by an Authorised Signatory of the Supplier, certifying
that the Satellite Construction Contract is in full force and effect, with
the date of such entry into full force and effect, and has not been
suspended, interrupted, cancelled or terminated, amended or modified and
no arbitration or other legal proceedings have been initiated between the
Borrower and the Supplier in respect of the Satellite Construction
Contract;
|
163
|
|
(d)
|
a
certificate, signed by an Authorised Signatory of the Launch Services
Provider, certifying that the Launch Services Contract is in full force
and effect, with the date of such entry into full force and effect, and
has not been suspended, interrupted, cancelled or terminated, amended or
modified and no arbitration or other legal proceedings have been initiated
between the Borrower and the Launch Services Provider in respect of the
Launch Services Contract; and
|
|
|
(e)
|
written
evidence received from:
|
|
|
(i)
|
the
Supplier of the payment by the Borrower to the Supplier of the Advance
Payment in respect of the Satellite Construction Contract;
and
|
|
|
(ii)
|
the
Launch Services Provider of the payment by the Borrower to the Launch
Services Provider of the Advance Payment in respect of the Launch Services
Contract.
|
|
8.
|
COFACE
INSURANCE POLICY
|
Each
COFACE Insurance Policy is in full force and effect and is in form and substance
satisfactory to the COFACE Agent (acting on the instructions of all the Lenders)
and the COFACE Agent (acting on the instructions of all the Lenders) is
satisfied that all conditions of each COFACE Insurance Policy are fulfilled and
that all the requisite approvals of the French Authorities have been
obtained.
|
9.
|
NO
MATERIAL ADVERSE EFFECT
|
Since the
date of this Agreement nothing has occurred which has or could reasonably be
expected to have a Material Adverse Effect.
|
10.
|
EQUITY
/ SUBORDINATED DEBT
|
Evidence
that Thermo has converted into share capital of the Borrower all of the
Financial Indebtedness owed by the Borrower (including pursuant to the Thermo
Facility Agreement), together with a pay off letter (in form and substance
satisfactory to the COFACE Agent) evidencing the termination of all obligations
under the Thermo Facility Agreement.
|
11.
|
EQUITY
CONTRIBUTION
|
|
|
(a)
|
Evidence
that prior to Financial Close, Thermo (or any other third party) has
contributed to the Borrower at least seventy five million Dollars
(US$75,000,000) (in aggregate) of equity by way of share capital or
subordinated shareholder loans, as
follows:
|
|
|
(i)
|
since
the date of this Agreement, Thermo (or any other third party) has
contributed to the Borrower at least forty five million Dollars
(US$45,000,000) of equity by way of share capital or subordinated
shareholder loans (excluding the equity issued to Thermo as described in
paragraph 10 (Equity /
Subordinated Debt) above);
and
|
164
|
|
(ii)
|
since
1 December 2008 to the date of Financial Close, Thermo has contributed to
the Borrower thirty million Dollars (US$30,000,000) of equity by way of
share capital.
|
|
|
(b)
|
Evidence
that sixty million Dollars (US$60,000,000) of contingent equity (in Cash)
is funded to the Thermo Contingent Equity
Account.
|
|
12.
|
DEBT
SERVICE RESERVE ACCOUNT
|
Evidence
that the Debt Service Reserve Account has been opened and is funded with the
DSRA Required Balance (including by way of making available the Supplier
Guarantee).
|
13.
|
INSURANCES
|
|
(a)
|
A
report from the Insurance
Consultant.
|
|
|
(b)
|
The
insurance provisions in each of the Commercial Contracts have been amended
in form and substance satisfactory to the COFACE Agent (acting in
consultation with the Insurance
Consultant).
|
|
|
(c)
|
The
COFACE Agent shall have received:
|
|
|
(i)
|
evidence
of payment of all insurance premiums (as required within the applicable
credit terms agreed with insurers) for the current policy year of each
Insurance (naming COFACE, the COFACE Agent and the Lenders as additional
insured on all certificates for “all risks property
insurance” and also the Security Agent as first Loss Payee on the
Launch Insurance and as additional named insured on the Launch third party
liability insurance);
|
|
|
(ii)
|
in
relation to the “all
risks property insurance”, a certified copy of the Insurance
Documentation (including evidence of transit insurance), copies (certified
by a Responsible Officer of the Supplier) in the form required under the
Security Documents and otherwise in form and substance reasonably
satisfactory to the COFACE Agent;
and
|
|
|
(iii)
|
a
certified copy of a certificate from the Supplier in respect of its third
party liability insurance in the same form to be provided pursuant to
Artice 31 of the Satellite Construction
Contract.
|
|
14.
|
KNOW
YOUR CUSTOMER REQUIREMENTS
|
The COFACE Agent shall
have received each of the documents referred to in Schedule
7 (Know
Your Customer Requirements).
165
|
15.
|
NO
INJUNCTION, ETC.
|
|
|
(a)
|
No
action, proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed by any Governmental Authority to
enjoin, restrain, or prohibit, or to obtain substantial damages in respect
of, or which is related to or arises out of the Finance Documents or the
consummation of the transactions contemplated thereby, or which, in the
COFACE Agent’s sole discretion, would make it inadvisable to consummate
the transactions contemplated by the Finance Documents or the consummation
of the transactions contemplated
thereby.
|
|
|
(b)
|
The
COFACE Agent shall be reasonably satisfied that no proceeding shall be
pending or threatened which may result in the loss, revocation, material
modification, non-renewal, suspension or termination of any Material
Communications Licence, the issuance of any cease or desist order or the
imposition of any fines, forfeitures or other administrative actions by
the FCC with respect to any operations of the Borrower and its
Subsidiaries.
|
|
|
(c)
|
The
COFACE Agent shall be reasonably satisfied that no proceeding shall be
pending or threatened which may result in the denial by the FCC of any
pending material applications of the Borrower or any Subsidiary thereof,
if such denial could reasonably be expected to have a Material Adverse
Effect.
|
|
16.
|
GROUP
STRUCTURE CHART
|
A
certified copy of the Group Structure Chart.
|
17.
|
ACCOUNTS
|
Evidence
that:
|
|
(a)
|
the
Project Accounts (other than the Collection Account) have each been opened
and continue to be maintained with the Offshore Account Bank;
and
|
|
|
(b)
|
the
Collection Account has been opened and continues to be maintained with the
Onshore Account Bank.
|
|
18.
|
OTHER
DOCUMENTS AND EVIDENCE
|
|
|
(a)
|
Evidence
that any process agent referred to in Clause 40.2 (Service of Process)
(and any other equivalent provision in the other Finance Documents) has
accepted its appointment.
|
|
|
(b)
|
A
copy of any other Authorisation or other document, opinion or assurance
which the Lender considers to be necessary in connection with the entry
into and performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any Finance
Document.
|
|
|
(c)
|
Copies
of the following financial
statements:
|
|
|
(i)
|
the
annual audited financial statements issued by the Borrower for the
financial year ended 31 December 2008;
and
|
166
|
|
(ii)
|
the
unaudited financial statements issued by the Borrower for the period ended
31 March 2009.
|
|
|
(d)
|
Evidence
that fees, costs and expenses as at the date of the first Utilisation due
from the Borrower pursuant to the Finance Documents have been paid or will
be paid by the first Utilisation
Date.
|
|
|
(e)
|
Evidence
that the Borrower has purchased the Interest Rate Cap Agreements with each
Original Lender in proportion to its
Commitment.
|
|
|
(f)
|
Evidence
of the conversion of not less than seventy eight million two hundred
thousand Dollars (US$78,200,000) of the Convertible
Notes.
|
|
|
(g)
|
A
certified copy of each Cash Contribution
Agreement.
|
|
|
(h)
|
A
copy of the Financial Model (as such term is defined in the Accounts
Agreement).
|
|
|
(i)
|
A
subordinated loan agreement between the Borrower and Thermo with respect
to the onward lending by Thermo of amounts provided to Thermo by the DSRA
Providers.
|
167
SCHEDULE
3
UTILISATION
REQUEST
|
From:
|
[Borrower]
|
|
To:
|
[COFACE
Agent]
|
|
Cc:
|
[the Supplier] / [the Launch Services
Provider]
|
|
Dated:
|
[●]
|
Dear
Sirs,
COFACE
Facility Agreement dated [●] (the “Agreement”)
|
1.
|
We
refer to the Agreement. This is a Utilisation Request for a
[disbursement] /
[reimbursement]. Terms
defined in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation
Request.
|
|
2.
|
We
wish to borrow a [Facility A] /
[Facility B]
Loan on the following terms:
|
|
Proposed
Utilisation Date:
|
[●]
(or, if that is not a Business Day, the next Business
Day)
|
|
Amount:
|
[[●]
[[Dollars] (US$[●])] or, if less,
the Available Facility
|
|
Interest
Period:
|
Six (6) Months
|
|
Use
of Proceeds:
|
[US$[●] payable to Thales Alenia Space
France for payment of the Invoice dated [●] in relation to the Satellite
Construction Contract.]
|
|
[US$[●] payable to Arianespace for
payment of the Invoice dated [●] in relation to the Launch
Services Contract.]
|
|
|
[US$[●] payable to the Borrower as
reimbursement for payment to the Supplier and to the Launch Services
Provider in relation to part of the Eligible Amount according
to the Invoices separately provided to the COFACE
Agent.]
|
|
|
[[Dollars] (US$[●]) payable to the COFACE Agent
for payment of the COFACE Insurance
Premia.]
|
|
3.
|
We
confirm that each condition specified in Clause 4.2 (Conditions Precedent)
[and Clause 4.3
(Conditions Precedent to Certain Utilisations)] [is] [are]
satisfied on the date of this Utilisation
Request.
|
168
|
4.
|
The
proceeds of this Loan should be credited to [insert relevant bank account
details].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
authorised
signatory for
169
SCHEDULE
4
MANDATORY
COST FORMULA
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with:
|
|
|
(a)
|
the
requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or
any of its functions); or
|
|
|
(b)
|
the
requirements of the European Central
Bank.
|
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the COFACE Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”)
for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the COFACE
Agent as a weighted average of the Lenders’ Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in
the relevant Loan) and will be expressed as a percentage rate per
annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the COFACE Agent. This percentage will be certified by that
Lender in its notice to the COFACE Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender’s
participation in all Loans made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank in
respect of Loans made from that Facility
Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the COFACE Agent as
follows:
|
 |
per cent. per
annum.
|
Where
“E” is designed to
compensate Lenders for amounts payable under the Fees Rules and is calculated by
the COFACE Agent as being the average of the most recent rates of charge
supplied by the Reference Banks to the COFACE Agent pursuant to paragraph 7
below and expressed in pounds per £1,000,000.
|
5.
|
For
the purposes of this Schedule:
|
|
|
(a)
|
“Fees Rules” means the
rules on periodic fees contained in the FSA Supervision Manual or such
other Law as may be in force from time to time in respect of the payment
of fees for the acceptance of
deposits;
|
|
|
(b)
|
“Fee Tariffs” means the
fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable
discount rate); and
|
170
|
|
(c)
|
“Tariff Base” has the
meaning given to it in, and will be calculated in accordance with, the
Fees Rules.
|
|
6.
|
If
requested by the COFACE Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the COFACE Agent, the rate of charge payable by that Reference Bank to
the Financial Services Authority pursuant to the Fees Rules in respect of
the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that
Reference Bank.
|
|
7.
|
Each
Lender shall supply any information required by the COFACE Agent for the
purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a
Lender:
|
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
|
(b)
|
any
other information that the COFACE Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the COFACE Agent of any change to the information
provided by it pursuant to this paragraph.
|
8.
|
The
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the COFACE Agent based upon the information supplied to it
pursuant to paragraph 6 and 7
above.
|
|
9.
|
The
COFACE Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 6 and 7 above
is true and correct in all
respects.
|
|
10.
|
The
COFACE Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender and
each Reference Bank pursuant to paragraphs 3, 6 and 7
above.
|
|
11.
|
Any
determination by the COFACE Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be conclusive
and binding on all Parties.
|
|
12.
|
The
COFACE Agent may from time to time, after consultation with the Borrower
and the Lenders, determine and notify to all Parties any amendments which
are required to be made to this Schedule in order to comply with any
change in Law, regulation or any requirements from time to time imposed by
the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all
Parties.
|
171
SCHEDULE
5
FORM
OF TRANSFER CERTIFICATE
|
To:
|
[●]
as COFACE Agent
|
|
From:
|
[The Existing Lender]
(the “Existing
Lender”) and [The
New Lender] (the “New
Lender”)
|
|
Dated:
|
[●]
|
COFACE
Facility Agreement dated [●] (the “Agreement”)
|
1.
|
We
refer to the Agreement. This is a Transfer
Certificate. Terms defined in the Agreement have the same
meaning in this Transfer Certificate unless given a different meaning in
this Transfer Certificate.
|
|
2.
|
We
refer to Clause 26.5 (Procedure for Transfer)
of the Agreement:
|
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender’s Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 26.5 (Procedure for
Transfer) of the
Agreement.
|
|
|
(b)
|
The
proposed Transfer Date is [●].
|
|
|
(c)
|
The
Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 33.2 (Addresses) of the
Agreement are set out in the
Schedule.
|
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in paragraph (c) of Clause 26.4 (Limitation of Responsibility
of Existing Lenders) of the
Agreement.
|
|
4.
|
The
New Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document
is a Qualifying Lender.
|
|
5.
|
This
Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were
on a single copy of this Transfer
Certificate.
|
|
6.
|
This
Transfer Certificate and any non-contractual obligations arising out of or
in connection with it are governed by English
law.
|
|
7.
|
For
the purposes of Article 1278 and
seq. of the
French Civil Code, it is agreed that the security interest created
pursuant to the Pledge of Bank Accounts shall be preserved for the benefit
of the New Lender and all other Finance
Parties.
|
172
THE
SCHEDULE
Commitment/rights
and obligations to be transferred
[insert relevant
details]
[Facility Office address, fax
number and attention details for notices and account details
for
payments,]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
[●]
|
By:
[●]
|
This
Transfer Certificate is accepted by the COFACE Agent and the Transfer Date is
confirmed as [●].
[COFACE
Agent]
By: [●]
173
SCHEDULE
6
THE
SECURITY AGENT
|
1.
|
SECURITY
AGENT AS HOLDER OF LIENS
|
|
|
(a)
|
In
this Clause:
|
“Finance Party Claim” means any
amount which an Obligor owes to a Finance Party under or in connection with the
Finance Documents; and
“Security Agent Claim” means
any amount which an Obligor owes to the Security Agent under this
Clause.
|
|
(b)
|
Unless
expressly provided to the contrary in any Finance Document, the Security
Agent holds:
|
|
|
(i)
|
any
security created by a Security Document governed by any relevant
law;
|
|
|
(ii)
|
the
benefit of any Security Agent Claims;
and
|
|
|
(iii)
|
any
proceeds of security,
|
for the
benefit, and as the property, of the Finance Parties.
|
|
(c)
|
The
Security Agent will separately identify in its records the property rights
referred to in paragraph (b)
above.
|
|
|
(d)
|
The
Borrower must pay the Security Agent, as an independent and separate
creditor, an amount equal to each Finance Party Claim on its due
date.
|
|
|
(e)
|
The
Security Agent may enforce performance of any Security Agent Claim in its
own name as an independent and separate right. This includes
any suit, execution, enforcement of security, recovery of guarantees and
applications for and voting in respect of any kind of insolvency
proceeding.
|
|
|
(f)
|
Each
Finance Party must, at the request of the Security Agent, perform any act
required in connection with the enforcement of any Security Agent
Claim. This includes joining in any proceedings as co-claimant
with the Security Agent.
|
|
|
(g)
|
Unless
the Security Agent fails to enforce a Security Agent Claim within a
reasonable time after its due date, a Finance Party may not take any
action to enforce the corresponding Finance Party Claim unless it is
requested to do so by the Security
Agent.
|
|
|
(h)
|
The
Borrower irrevocably and unconditionally waives any right it may have to
require a Finance Party to join in any proceedings as co-claimant with the
Security Agent in respect of any Security Agent
Claim.
|
174
|
|
(i)
|
(A) Discharge
by the Borrower of a Finance Party Claim will discharge the corresponding
Security Agent Claim in the same amount; and (B) Discharge by the
Borrower of a Security Agent Claim will discharge the corresponding
Finance Party Claim in the same
amount.
|
|
|
(j)
|
The
aggregate amount of the Security Agent Claims will never exceed the
aggregate amount of Finance Party
Claims.
|
|
|
(k)
|
(A) A
defect affecting a Security Agent Claim against the Borrower will not
affect any Finance Party Claim; and (B) A defect affecting a Finance
Party Claim against the Borrower will not affect any Security Agent
Claim.
|
|
|
(l)
|
If
the Security Agent returns to the Borrower, whether in any kind of
insolvency proceedings or otherwise, any recovery in respect of which it
has made a payment to a Finance Party, that Finance Party must repay an
amount equal to that recovery to the Security
Agent.
|
|
2.
|
RESPONSIBILITY
|
|
|
(a)
|
The
Security Agent is not liable or responsible to any other Finance Party
for:
|
|
|
(i)
|
any
failure in perfecting or protecting the security created by any Security
Document; or
|
|
|
(ii)
|
any
other action taken or not taken by it in connection with any Security
Document,
|
unless
caused by its gross negligence or wilful misconduct.
|
|
(b)
|
The
Security Agent is not responsible
for:
|
|
|
(i)
|
the
right or title of any person in or to, or the value of, or sufficiency of
any part of the security created by the Security
Documents;
|
|
|
(ii)
|
the
priority of any security created by the Security Documents;
or
|
|
|
(iii)
|
the
existence of any other Lien affecting any asset secured under a Security
Document.
|
|
3.
|
TITLE
|
The
Security Agent may accept, without enquiry, the title (if any) the Borrower may
have to any asset over which security is intended to be created by any Security
Document.
|
4.
|
POSSESSION
OF DOCUMENTS
|
The
Security Agent is not obliged to hold in its own possession any Security
Document, title deed or other document in connection with any asset over which
security is intended to be created by a Security Document. Without
prejudice to the above, the Security Agent may allow any bank providing safe
custody services or any professional adviser to the Security Agent to retain any
of those documents in its possession.
175
|
5.
|
INVESTMENTS
|
Except as
otherwise provided in any Security Document, all moneys received by the Security
Agent under a Security Document may be:
|
|
(a)
|
invested
in the name of, or under the control of, the Security Agent in any
investment for the time being authorised by any relevant law for the
investment by trustees of trust money or in any other investments which
may be selected by the Security Agent with the consent of the Majority
Lenders; or
|
|
|
(b)
|
placed
on deposit in the name of, or under the control of, the Security Agent at
any bank or institution (including any Finance Party) and on such terms as
the Security Agent may agree.
|
|
6.
|
APPROVAL
|
Each
Finance Party:
|
|
(a)
|
confirms
its approval of each Security Document;
and
|
|
|
(b)
|
authorises
and directs the Security Agent (by itself or by such person(s) as it may
nominate) to enter into and enforce the Security Documents as trustee (or
agent) or as otherwise provided (and whether or not expressly in the names
of the Finance Parties) on its
behalf.
|
|
7.
|
CONFLICT
WITH SECURITY DOCUMENTS
|
If there
is any conflict between this Agreement and any Security Document with regard to
instructions to, or other matters affecting, the Security Agent, this Agreement
will prevail.
|
8.
|
RELEASE
OF SECURITY
|
|
|
(a)
|
If
a disposal of any asset subject to security created by a Security Document
is made to a person (which is and will remain) outside the Group in the
following circumstances:
|
|
|
(i)
|
all
the Lenders agree to the disposal;
|
|
|
(ii)
|
the
disposal is being made at the request of the Security Agent in
circumstances where any security created by the Security Documents has
become enforceable;
|
|
|
(iii)
|
the
disposal is allowed by the terms of the Finance Documents and will not
result or could not reasonably be expected to result in any Default;
and
|
|
|
(iv)
|
the
disposal is being effected by enforcement of a Security Document, the
asset(s) being disposed of will be released from any security over it
created by a Security Document.
|
176
|
|
(b)
|
Any
release under this Subclause will not become effective until the date of
the relevant disposal or otherwise in accordance with the consent of all
the Lenders.
|
|
|
(c)
|
If
a disposal is not made, then any release relating to that disposal will
have no effect, and the obligations of the Borrower under the Finance
Documents will continue in full force and
effect.
|
|
|
(d)
|
If
the Security Agent so requests pursuant to a release under this Subclause,
(at the request and expense of the Borrower) each Finance Party must enter
into any document and do all such other things which are reasonably
required to achieve that release. Each other Finance Party
irrevocably authorises the Security Agent to enter into any such
document.
|
|
9.
|
CO-SECURITY
AGENT
|
|
|
(a)
|
The
Security Agent may appoint a separate security agent or a co-security
agent in any jurisdiction:
|
|
|
(i)
|
if
the Security Agent considers that without the appointment the interests of
the Lenders under the Finance Documents might be materially and adversely
affected;
|
|
|
(ii)
|
for
the purpose of complying with any law, regulation or other condition in
any jurisdiction; or
|
|
|
(iii)
|
for
the purpose of obtaining or enforcing a judgment or enforcing any Finance
Document in any jurisdiction.
|
|
|
(b)
|
Any
appointment under this Subclause will only be effective if the security
agent or co-security agent confirms to the Security Agent and the Borrower
in form and substance satisfactory to the Security Agent that it is bound
by the terms of this Agreement as if it were the Security
Agent.
|
|
|
(c)
|
The
Security Agent may remove any security agent or co-security agent
appointed by it and may appoint a new security agent or co-security agent
in its place.
|
|
11.
|
INFORMATION
|
Each
Finance Party and the Borrower must supply the Security Agent with any
information that the Security Agent may reasonably specify as being necessary or
desirable to enable it to perform its functions under this
Clause.
177
|
12.
|
PERFECTION
OF SECURITY
|
Borrower
must (at its own cost) take any action and enter into and deliver any document
which is required by the Security Agent so that a Security Document provides for
effective and perfected security in favour of any successor Security
Agent.
178
SCHEDULE
7
KNOW
YOUR CUSTOMER REQUIREMENTS
The
Borrower shall provide the following documents to the COFACE Agent, upon the
request of a Finance Party, in original or certified copy form:
|
1.
|
Formation
Documents: original or
certified copies of the certificate of commercial registration, memorandum
of association or any other equivalent formation documents in English that
have been filed with the relevant business registry in the jurisdiction of
formation of the Borrower and any other trading
names;
|
|
2.
|
List of Directors: a certified list
of all directors of the Borrower
including:
|
|
|
(a)
|
names;
|
|
|
(b)
|
nationalities;
|
|
|
(c)
|
dates
of birth; and
|
|
|
(d)
|
business
addresses;
|
|
3.
|
Passports: a certified copy
of the passports of the persons signing each of the Finance Documents for
and on behalf of the Borrower;
|
|
4.
|
Financials: most recent annual
audited financial reports (if any) and the latest unaudited statement of
accounts; and
|
|
5.
|
Listing: evidence that the
Borrower is a listed entity.
|
179
SCHEDULE
8
FORM
OF COMPLIANCE CERTIFICATE
|
To:
|
BNP
Paribas as COFACE Agent
|
|
From:
|
[Borrower]
|
|
Dated:
|
[●]
|
Dear
Sirs
Globalstar
COFACE Facility Agreement dated [●] (the “Agreement”)
|
1.
|
We
refer to the Agreement. This is a Compliance
Certificate. Terms defined in the Agreement have the same
meaning in this Compliance Certificate unless given a different meaning in
this Compliance Certificate.
|
|
2.
|
We
confirm that: [Insert details of covenants to be
certified].
|
|
3.
|
We
confirm that the amounts as of the date of this Compliance Certificate in
each of the Project Accounts are as
follows:
|
|
|
(a)
|
the
Capital Expenditure Account –
US$[●];
|
|
|
(b)
|
the
Collection Account – US$[●];
|
|
|
(c)
|
the
Borrower Contingent Equity Account –
US$[●];
|
|
|
(d)
|
the
Thermo Contingent Equity Account –
US$[●];
|
|
|
(e)
|
the
Convertible Note Reserve Account –
US$[●];
|
|
|
(f)
|
the
Debt Service Account – US$[●];
|
|
|
(g)
|
the
Debt Service Reserve Account –
US$[●];
|
|
|
(h)
|
the
Distribution Account – US$[●]; and
|
|
|
(i)
|
the
Insurance Proceeds Account –
US$[●].
|
|
4.
|
[We
confirm that no Default is continuing.]*
|
|
Signed:
|
||||
|
Director
|
Director
|
|||
|
Of
|
Of
|
|||
|
|
[Borrower]
|
|
[Borrower]
|
|
*
|
If
this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy
it.
|
180
SCHEDULE
9
ERISA
PLANS
|
1.
|
Globalstar,
Inc. Savings Plan (401(k));
|
|
2.
|
Globalstar,
Inc. Pension Plan (Retirement);
|
|
3.
|
Globalstar,
Inc. Comprehensive Welfare Benefits Plan (medical, dental, vision,
life);
|
|
4.
|
Globalstar,
Inc. Disability Plan; and
|
|
5.
|
Globalstar,
Inc. Section 125 Flex Plan.
|
181
SCHEDULE
10
FORM
OF CONFIDENTIALITY UNDERTAKING
To:
|
|
[insert name of Potential
Lender]
|
|
Re:
|
The
Facility
|
|
Borrower:
Amount:
COFACE
Agent:
|
Dear
Sirs,
We
understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
|
1.
|
Confidentiality
Undertaking: You
undertake:
|
|
|
(a)
|
to
keep the Confidential Information confidential and not to disclose it to
anyone except as provided for by paragraph 2 below and to ensure that
the Confidential Information is protected with security measures and a
degree of care that would apply to your own confidential
information;
|
|
|
(b)
|
to
use the Confidential Information only for the Permitted Purpose;
and
|
|
|
(c)
|
to
use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2(b)
below) acknowledges and complies with the provisions of this letter as if
that Person were also a party to
it.
|
|
2.
|
Permitted
Disclosure: We agree that you
may disclose Confidential
Information:
|
|
|
(a)
|
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group;
|
|
|
(b)
|
(i) where
requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body,
(ii) where required by the rules of any stock exchange on which the
shares or other securities of any member of the Participant Group are
listed or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of the
Participant Group; or
|
182
|
|
(c)
|
with
the prior written consent of us and the
Borrower.
|
|
3.
|
Notification
of Required or Unauthorised Disclosure: You agree (to the
extent permitted by law and except where disclosure is to be made to any
competent supervisory or regulatory body during the ordinary course of its
supervisory or regulatory function over you) to inform us of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming
aware that Confidential Information has been disclosed in breach of this
letter.
|
|
4.
|
Return of
Copies: If we so request
in writing, you shall return all Confidential Information supplied to you
by us and destroy or permanently erase (to the extent technically
practicable) all copies of Confidential Information made by you and use
all reasonable endeavours to ensure that anyone to whom you have supplied
any Confidential Information destroys or permanently erases (to the extent
technically practicable) such Confidential Information and any copies made
by them, in each case save to the extent that you or the recipients are
required to retain any such Confidential Information by any applicable
law, rule or regulation or by any competent judicial, governmental,
supervisory or regulatory body or in accordance with internal policy, or
where the Confidential Information has been disclosed under
paragraph 2(b) above.
|
|
5.
|
Continuing
Obligations: The obligations in
this letter are continuing and, in particular, shall survive the
termination of any discussions or negotiations between you and
us. Notwithstanding the previous sentence, the obligations in
this letter shall cease on the earlier of (a) the date you become a
party to or otherwise acquire (by assignment, sub participation or
otherwise) an interest, direct or indirect in the Facility and
(b) twelve Months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased (to
the extent technically practicable) all copies of Confidential Information
made by you (other than any such Confidential Information or copies which
have been disclosed under paragraph 2 above (other than
sub-paragraph 2(a)) or which, pursuant to paragraph 4 above, are
not required to be returned or
destroyed).
|
|
6.
|
No
Representation; Consequences of Breach, etc: You acknowledge
and agree that:
|
|
|
(a)
|
neither
we, nor any member of the Group nor any of our or their respective
officers, employees or advisers (each a “Relevant Person”)
(i) make any representation or warranty, express or implied, as to,
or assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any other
information supplied by us or the assumptions on which it is based or
(ii) shall be under any obligation to update or correct any
inaccuracy in the Confidential Information or any other information
supplied by us or be otherwise liable to you or any other Person in
respect to the Confidential Information or any such information;
and
|
|
|
(b)
|
we
or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person may be granted an injunction or specific performance for
any threatened or actual breach of the provisions of this letter by
you.
|
183
|
7.
|
No Waiver;
Amendments, etc: This letter sets
out the full extent of your obligations of confidentiality owed to us in
relation to the information the subject of this letter. No
failure or delay in exercising any right, power or privilege under this
letter will operate as a waiver thereof nor will any single or partial
exercise of any right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privileges under this
letter. The terms of this letter and your obligations under
this letter may only be amended or modified by written agreement between
us.
|
|
8.
|
Inside
Information: You acknowledge
that some or all of the Confidential Information is or may be
price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law
relating to insider dealing and market abuse and you undertake not to use
any Confidential Information for any unlawful
purpose.
|
|
9.
|
Nature of
Undertakings: The undertakings
given by you under this letter are given to us and (without implying any
fiduciary obligations on our part) are also given for the benefit of the
Borrower and each other member of the
Group.
|
|
10.
|
Third Party
Rights:
|
|
|
(a)
|
Subject
to this paragraph 10 and to paragraph 6 and paragraph 9, a
person who is not a party to this letter has no right under the Contracts
(Rights of Third Parties) Xxx 0000 (the “Third Parties Act”) to
enforce or enjoy the benefit of any term of this
letter.
|
|
|
(b)
|
The
Relevant Persons may enjoy the benefit of paragraphs 6 and 9 subject
to and in accordance with this paragraph 10 and the provisions of the
Third Parties Act.
|
|
|
(c)
|
The
parties to this letter do not require the consent of any Relevant Person
to rescind or vary this letter at any
time.
|
|
11.
|
Governing
Law and Jurisdiction: This letter
(including the agreement constituted by your acknowledgement of its terms)
shall be governed by and construed in accordance with the laws of England
and the parties submit to the non-exclusive jurisdiction of the English
courts.
|
|
12.
|
Definitions: In this letter
(including the acknowledgement set out below) terms defined in the
Facility shall, unless the context otherwise requires, have the same
meaning and:
|
“Confidential Information”
means any information relating to the Borrower, the Group, and the Finance
Documents, provided to you by us or any of our affiliates or advisers, in
whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes information
that (a) is or becomes public knowledge other than as a direct or indirect
result of any breach of this letter or (b) is known by you before the date
the information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you after that date, other than from a source which
is connected with the Group and which, in either case, as far as you are aware,
has not been obtained in violation of, and is not otherwise subject to, any
obligation of confidentiality;
184
“Group” means the Borrower and
each of its holding companies and subsidiaries and each subsidiary of each of
its holding companies (as each such term is defined in the Companies
Act 1985);
“Participant Group” means you,
each of your holding companies and subsidiaries and each subsidiary of each of
your holding companies (as each such term is defined in the Companies
Act 1985); and
“Permitted Purpose” means
considering and evaluating whether to enter into the Facility.
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
_________________
|
For
and on behalf of
|
|
|
Mandated
Lead Arranger
|
|
|
To:
[Mandated Lead Arranger]
|
|
|
The
Borrower and each other member of the Group
|
|
|
We
acknowledge and agree to the above:
|
_________________
|
For
and on behalf of
|
|
|
[Potential
Lender]
|
185
SCHEDULE
11
PAYMENT
TERMS
Each
payment under this Agreement shall be payable:
|
(a)
|
to
the Supplier and/or the Launch Services Provider, as the case may be;
or
|
|
(b)
|
in
the case of a reimbursement to the Borrower, to the
Borrower,
|
against
presentation of:
|
|
(i)
|
a
copy of a duly certified Invoice and a Qualifying
Certificate;
|
|
|
(ii)
|
in
the case of payments to the Supplier only, a certificate of completion, as
provided for in the Satellite Construction Contract, duly signed by the
Borrower;
|
|
|
(iii)
|
a
Utilisation Request; and
|
|
|
(iv)
|
in
relation to a reimbursement to the Borrower, a certificate signed by a
Responsible Officer of the Borrower confirming to the COFACE
Agent:
|
|
|
(A)
|
that
the Borrower has made the payment in respect of which the reimbursement is
required; and
|
|
|
(B)
|
the
purpose for which the Loan shall be
applied.
|
186
SCHEDULE
12
MATERIAL
CONTRACTS
|
1.
|
QUALCOMM
Globalstar Satellite Products Supply Agreement by and between XXXXXXXX
Xxxxxxxxxxxx and the Borrower (then named “New Operating Globalstar LLC”),
dated as of 13 April 2004
(NOG-C-04-0137).
|
|
|
(a)
|
Amendment
Number 1 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 25 May 2005;
|
|
|
(b)
|
Amendment
Number 2 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 25 May 2005;
|
|
|
(c)
|
Amendment
Number 3 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 30 September 2005;
|
|
|
(d)
|
Amendment
Number 4 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 15 August 2006;
|
|
|
(e)
|
Amendment
Number 5 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 20 November 2007;
|
|
|
(f)
|
Amendment
Number 6 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 20 November 2007;
and
|
|
(g)
|
Amendment
Number 7 to QUALCOMM Globalstar Satellite Products Supply Agreement,
dated as of 27 October 2008.
|
|
2.
|
Satellite
Construction Contract between the Borrower and the Supplier dated as of
30 November 2006.
|
|
(a)
|
Amendment
Number 1 to Satellite Construction Contract, dated as of 12 December
2006;
|
|
(b)
|
Amendment
Number 2 to Satellite Construction Contract, dated as of
31 October 2007;
|
|
(c)
|
Amendment
Number 3 to Satellite Construction Contract, dated as of
19 December 2007;
|
|
(d)
|
Amendment
Number 4 to Satellite Construction Contract, dated as of 17 July
2008;
|
|
(e)
|
Amendment
Number 5 to Satellite Construction Contract, dated as of
9 December 2008;
|
|
(f)
|
Amendment
Number 6 to Satellite Construction Contract, dated as of
5 February 2009;
|
|
(g)
|
Amendment
Number 7 to Satellite Construction Contract, dated as of 5 March
2009;
|
187
|
(h)
|
Amendment
Number 8 to Satellite Construction Contract, dated as of 9 April
2009; and
|
|
(i)
|
Amended
and Restated Satellite Construction
Contract.
|
|
3.
|
Escrow
Agreement between the Borrower, the Supplier and Société Générale dated
21 December 2006 (to be terminated at Financial
Closing).
|
|
4.
|
Control
Network Facility Construction Contract between the Borrower and the
Supplier dated as of 22 March
2007.
|
|
(a)
|
Change
Notice Number 1 to Control Network Facility Construction
Contract dated as of 21 March 2008;
and
|
|
(b)
|
Change
Notice Number 2 to Control Network Facility Construction
Contract dated as of 8 August
2008.
|
|
5.
|
Launch
Services Agreement between the Borrower and the Launch Services Provider
dated as of 5 September 2007 and Amendment Number 1 to Launch
Services Agreement, dated as of 5 July
2008.
|
|
6.
|
Radio
Access Network and User Terminal Subsystem Contract between the Borrower
and Xxxxxx, effective as of 1 May
2008.
|
|
7.
|
Core
Network Purchase Agreement between the Borrower and Ericsson, dated as of
1 October 2008.
|
|
8.
|
Senior
Indenture between the Borrower and U.S. Bank, National Association
dated as of 15 April 2008.
|
|
(a)
|
First
Supplemental Indenture to Senior Indenture dated as of 15 April 2008;
and
|
|
(b)
|
Amendment
to First Supplemental Indenture dated as of 1 December
2008.
|
|
9.
|
Pledge
and Escrow Agreement between the Borrower and U.S. Bank National
Association dated 15 April
2008.
|
|
10.
|
Thermo
Facility Agreement (to be repaid and terminated at Financial
Closing).
|
|
11.
|
The
Finance Documents.
|
188
SCHEDULE
13
LABOUR
AND COLLECTIVE BARGAINING AGREEMENTS
A labour
and collective bargaining agreement dated 25 August 2008 and entered in
between Sintte/RJ (Sindicato dos Trabalhadores em Empresas de Telecomunicações,
Transmissão de Dados e Correio Eletrônico, Telefonia Móvel Celular, Serviços
Troncalizados de Comunicação, Rádiochamadas, Telemarketing, Projeto, Construção,
Instalação e Operação de Mesas Telefônicas no Estado do Rio de Janeiro) and
Globalstar do Brasil S.A..
189
SCHEDULE
14
FINANCIAL
INDEBTEDNESS AND GUARANTEE OBLIGATIONS
|
1.
|
A
letter agreement entered into between Xxxxxx and the Borrower and dated
25 September 2008, in respect of payment deferral
arrangements.
|
|
2.
|
Amendment
Number 1 to Launch Services Agreement, dated as of 9 July 2008
(see Schedule 12, Item 5).
|
|
3.
|
Open
end promissory note in the maximum principal amount of US$10,000,000 dated
23 March 2006 from Globalstar de Venezuela, C.A. to Globalstar Canada
Satellite Co., having a balance outstanding of US$912,029 as of
31 March 2009.
|
|
4.
|
Open
end line of credit promissory note in the maximum principal amount of
US$50,000,000 dated 30 June 2007 and amended 31 December 2008
from Globalstar Canada Satellite Co. to the Borrower, having a balance
outstanding of US$28,359,863 as of 31 March
2009.
|
|
5.
|
Thermo
Facility Agreement.
|
|
6.
|
5.75%
Senior Convertible Notes of the Borrower due 2028, US$71,804,000
outstanding as of 31 March
2009.
|
190
SCHEDULE
15
COMMUNICATION
LICENCES
|
LICENCEE
(HOLDER)
|
CALL SIGN
|
FILE NO.
|
DESCRIPTION
|
|||
|
Globalstar
Licensee LLC
|
S2115
|
SAT-ASG-20060724-00078, SAT-A/O-199910603-00010
(formerly 19-DSS-P-91(48)), CSS-91-014)
SAT-MOD-20050301-00054 (ATC
authorization) & SAT-MOD-20080516-00106
Order FCC 08-248 (Oct. 15, 2008)
Order FCC 08-254 (Oct. 31,
2008)
|
1.6/2.4 GHz NGSO Licence. expires
4/21/13
(ATC –
1610-1617.775/2483.5-2495 MHz)
Reduced L-band assignment to 1610-1618.725
MHz2
Authorised the provision of ATC
services using WiMAX protocols3
|
|||
|
Globalstar Licensee LLC
|
XX0XXX
|
0000-XX-XX-0000
|
Expires 6/1/13
|
|||
|
Globalstar Licensee LLC
|
WC2XXD
|
0143-EX-RR-2007
|
Expires 9/1/11
|
|||
|
GUSA Licensee LLC
|
E000342
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx XX Gateway licence – Expires
3/22/11
|
|||
|
GUSA Licensee LLC
|
E000343
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx XX Gateway licence – Expires
3/22/11
|
|||
|
GUSA Licensee LLC
|
E000344
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx XX Gateway licence – Expires
3/22/11
|
|||
|
GUSA Licensee LLC
|
E000345
|
SES-ASG-20060724-01238 & XXX-XXX-00000000-00000
|
Xxxxxxx XX Gateway licence – Expires
3/22/11
|
|||
|
GUSA Licensee LLC
|
|
E970199
|
|
XXX-XXX-00000000-00000
|
|
Xxxxxxx XX Gateway TCU antenna – Expires
2/27/23
|
1 See paragraph 2(d), Schedule
25.
191
|
LICENCEE
(HOLDER)
|
CALL SIGN
|
FILE NO.
|
DESCRIPTION
|
|||
|
GUSA Licensee LLC
|
E970381
|
SES-MOD-20070921-01309 &
SES-LIC-19970710-00928
|
User terminal blanket licence – Expires
10/4/09
|
|||
|
GUSA Licensee LLC
|
E050097
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence - Expires
1/4/22
|
|||
|
GUSA Licensee LLC
|
E050098
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence -Expires 1/4/22
|
|||
|
GUSA Licensee LLC
|
E050099
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence -Expires
1/4/22
|
|||
|
GUSA Licensee LLC
|
E050100
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence -Expires
1/4/22
|
|||
|
GUSA Licensee LLC
|
E050345
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence -Expires
1/4/22
|
|||
|
GUSA Licensee LLC
|
E050346
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence -Expires
1/4/22
|
|||
|
GUSA Licensee LLC
|
E050347
|
SES-ASG-20060724-01238 &
XXX-XXX-00000000-00000
|
Xxxxxxx, XX Gateway licence -Expires
1/4/22
|
|||
|
GUSA
|
N/A
|
ITC-000-00000000-00000
|
Section 214 Certification – No
expiration
|
|||
|
GUSA
|
N/A
|
ITC-214-19991229-00795
|
Section 214 Certification – No
expiration
|
|||
|
GUSA
|
N/A
|
ITC-000-00000000-00000
|
Section 214 Certification – No
expiration
|
|||
|
GCL Licensee LLC
|
|
E990335
|
|
SES-ASG-20060724-01239 &
SES-LIC-19990809-01349, XXX-XXX-00000000-00000
|
|
Xxx Xxxxxx, XX Xxxxxxx licence – Expires
6/23/10
|
192
|
LICENCEE
(HOLDER)
|
CALL SIGN
|
FILE NO.
|
DESCRIPTION
|
|||
|
GCL Licensee LLC
|
E990336
|
SES-ASG-20060724-01239 & SES-LIC-19990809-01350,
XXX-XXX-00000000-00000
|
Xxx Xxxxxx, XX Xxxxxxx licence – Expires
6/23/10
|
|||
|
GCL Licensee LLC
|
E990337
|
SES-ASG-20060724-01239 &
SES-LIC-19990809-01351, XXX-XXX-00000000-00000
|
Xxx Xxxxxx, XX Xxxxxxx licence – Expires
6/23/10
|
|||
|
GCL
Licensee LLC
|
|
E050237
|
|
XXX-XXX-00000000-00000
|
|
Xxx Xxxxxx, XX Xxxxxxx licence – Expires
10/17/20
|
193
SCHEDULE
16
SATELLITES
|
Orbital Plane
(8 total, A-H)
|
In-Plane Slot
Location
|
Satellite Flight
Model Number
|
Satellite Status as of
27-Feb-09
|
|||
|
A
|
1
|
56
|
In-service
|
|||
|
2
|
63
|
In-service
|
||||
|
3
|
64
|
In-service
|
||||
|
4
|
3
|
In-service
|
||||
|
5
|
31
|
In-service
|
||||
|
B
|
1
|
60
|
In-service
|
|||
|
2
|
70
|
In-service
|
||||
|
3
|
59
|
In-service
|
||||
|
4
|
6
|
In-service
|
||||
|
5
|
15
|
In-service
|
||||
|
6
|
8
|
In-service
|
||||
|
C
|
1
|
69
|
In-service
|
|||
|
2
|
71
|
In-service
|
||||
|
3
|
44
|
In-service
|
||||
|
4
|
46
|
In-service
|
||||
|
5
|
45
|
In-service
|
||||
|
6
|
37
|
In-service
|
||||
|
D
|
1
|
62
|
In-service
|
|||
|
2
|
65
|
In-service
|
||||
|
3
|
47
|
In-service
|
||||
|
4
|
19
|
In-service
|
||||
|
5
|
25
|
In-service
|
||||
|
6
|
49
|
In-service
|
||||
|
7
|
52
|
In-service
|
||||
|
E
|
1
|
72
|
In-service
|
|||
|
2
|
51
|
In-service
|
||||
|
3
|
30
|
In-service
|
||||
|
4
|
39
|
In-service
|
||||
|
5
|
32
|
In-service
|
||||
|
6
|
42
|
In-service
|
||||
|
F
|
1
|
68
|
In-service
|
|||
|
2
|
26
|
In-service
|
||||
|
3
|
48
|
In-service
|
||||
|
4
|
43
|
In-service
|
||||
|
5
|
28
|
In-service
|
||||
|
6
|
34
|
In-service
|
||||
|
G
|
1
|
33
|
In-service
|
|||
|
2
|
66
|
In-service
|
||||
|
3
|
58
|
In-service
|
||||
|
4
|
24
|
In-service
|
||||
|
5
|
27
|
In-service
|
||||
|
6
|
38
|
In-service
|
||||
|
|
7
|
|
53
|
|
In-service
|
194
|
Orbital Plane
(8 total, A-H)
|
In-Plane Slot
Location
|
Satellite Flight
Model Number
|
Satellite Status as of
27-Feb-09
|
|||
|
H
|
1
|
67
|
In-service
|
|||
|
2
|
29
|
In-service
|
||||
|
3
|
36
|
In-service
|
||||
|
4
|
55
|
In-service
|
||||
|
|
5
|
|
40
|
|
In-service
|
195
SCHEDULE
17
EXISTING
LIENS
|
1.
|
UCC-3
Financing Statements filed with the Delaware Secretary of State on
18 December 2007 against the Borrower and Subsidiary Guarantors
amending previous UCC-1 Financing Statements to name Thermo, as the
administrative agent, as secured
party:
|
|
|
(a)
|
Globalstar,
Inc., original #61446640, assigned #2007
4776109;
|
|
(b)
|
Globalstar
USA, LLC, original #61446509, assigned #2007
4776612;
|
|
(c)
|
Globalstar
C, LLC #61446632, assigned #2007
4776372;
|
|
(d)
|
Globalstar
Leasing LLC, original #61446608, assigned #2007
4776208;
|
|
(e)
|
Globalstar
Security Services, L.L.C., original #61446590, assigned #2007
4776422;
|
|
(f)
|
ATSS
Canada, Inc., original #61446566, assigned #2007
4776547;
|
|
(g)
|
GSSI,
LLC, original #61446574, assigned #2007
4776497;
|
|
(h)
|
Globalstar
Licensee LLC, original #62989218, assigned #2007 4776729;
and
|
|
(i)
|
GUSA
Licensee LLC, original #62989283, assigned #2007
4776802.
|
|
2.
|
UCC-1
Financing Statement #20072125837 filed against Spot Inc., to which Spot
LLC is a successor in interest, in favour of Thermo, as administrative
agent with the Colorado Secretary of State on 18 December
2007.
|
|
3.
|
Form 3C
Personal Property Security Registrations filed against the Borrower and
Subsidiary Guarantors in favour of the administrative agent with the
Ontario, Canada Ministry of Consumer and Business Services on
17 January 2008:
|
|
(a)
|
Globalstar,
Inc. #625298679;
|
|
(b)
|
Globalstar
USA, LLC #625298661;
|
|
(c)
|
Globalstar
C, LLC #625298607;
|
|
(d)
|
Globalstar
Leasing LLC #625298598;
|
|
(e)
|
Globalstar
Security Services, LLC #625298625;
|
|
(f)
|
ATSS
Canada, Inc. #625298643; and
|
|
(g)
|
GSSI,
LLC #625298634.
|
|
4.
|
United
States Patent and Trademark Office filings against the Borrower’s
Patents.
|
196
|
5.
|
United
States Patent and Trademark Office filings against the Borrower’s
Trademarks.
|
|
6.
|
Pursuant
to the Pledge and Escrow Agreement between the Borrower and U.S. Bank
National Association (the “Bank”) dated
15 April 2008, the Bank has a security interest in the escrow account
created thereby and all property held by it (See Item 9, Schedule
12). The escrow account was created in connection with
the issuance of the senior secured notes in order to make certain
scheduled payments (see
Item 6, Schedule 14).
|
|
7.
|
Regarding
the Clifton, Texas real property:
|
|
(a)
|
Deed
of Trust granted by Globalstar USA, LLC to Wachovia Investment Holdings,
LLC regarding Clifton, Texas real property dated as of 7 February
2007 and assigned to Thermo as of 28 January
2008;
|
|
(b)
|
mineral
reservation as set forth in the deed dated 10 June 1954 and recorded
in volume 172, page 298 of the Deed Records of Bosque County,
Texas;
|
|
(c)
|
the
following oil and gas leases as recorded in the Deed Records of Bosque
County, Texas: volume 16, page 439; volume 134,
page 301; volume 14, page 370; volume 134,
page 369; and
|
|
(d)
|
items
shown on the survey prepared by Xxxxx Xxxx, RPLS #5233 dated
14 August 2006.
|
|
8.
|
Regarding
Wasilla, Alaska real property:
|
|
(a)
|
Deed
of Trust granted by Globalstar USA, LLC to Wachovia Investment Holdings,
LLC regarding Wasilla, Alaska real property dated 25 January
2007 and assigned to Thermo as of 13 February
2008;
|
|
(b)
|
reservations
or exceptions in patents or in acts authorizing the issuance
thereof. Recorded 1 April 1963 at Book 45,
page 284;
|
|
(c)
|
items
shown on the plats of Discovery Hill Subdivision;
and
|
|
(d)
|
items
shown on the As-Built Survey prepared by Xxxx Xxxxxxxx, PLS dated
18 August 2005.
|
197
SCHEDULE
18
QUALIFYING
CERTIFICATE
|
To:
|
COFACE
Agent
|
|
CC:
|
Borrower
|
|
From:
|
[Supplier] / [Launch Services
Provider]
|
|
Date
|
[●]
|
Dear
Sirs,
Re: COFACE
Facility Agreement - Globalstar
We refer
to the facility agreement dated [●] and made between Globalstar Inc., as
Borrower, BNP Paribas, Natixis, Crédit Industriel et Commercial, Crédit Agricole
Corporate and Investment Bank and Société Générale as Mandated Lead Arrangers,
BNP Paribas as COFACE Agent, the Lenders and others (the “COFACE
Facility Agreement”). Terms defined in the COFACE
Facility Agreement have the same meanings herein.
|
1.
|
We
refer to the utilisation request issued by [the Borrower] and dated
[●] (the “Utilisation
Request”).
|
|
2.
|
We
confirm that the copy of the [transportation documents /
acceptance certificates] attached to the Utilisation Request have
been issued for the payment of the attached
Invoices.
|
|
3.
|
We
confirm that:
|
|
|
(a)
|
[We
have received from the Borrower a payment of one hundred per cent. (100%) of the
Invoices in respect of the Eligible Portion to be reimbursed in accordance
with the Utilisation Request and such amount does not
include:
|
|
|
(i)
|
any
sum in respect of any payment you may already have made to
us;
|
|
|
(ii)
|
any
amount in respect of which we have already issued a Qualifying
Certificate; and
|
|
|
(iii)
|
any
sum in respect of goods and services which are not eligible for financing
under the Facility.
|
We attach
bank credit advice confirming that a payment of one hundred per cent. (100%) of the
attached Invoices have already been made.]
|
|
(b)
|
All
documents supplied by us in support of this Qualifying Certificate are
true copies of the originals and are in all material respects in
conformity with the [Satellite Construction
Contract] / [Launch Services
Contract] and you may rely on the accuracy and completeness of all
information and documents contained in or supplied with this Qualifying
Certificate;
|
198
|
|
(c)
|
The
goods and services to be financed by the Loan requested in the Utilisation
Request are goods and services included in the attached Invoices,
and:
|
|
|
(i)
|
the
portion of the amount referred to in paragraph 3(a) above
attributable to goods and services of French origin is
[●].
|
|
|
(ii)
|
the
portion of the amount referred to in paragraph 3(a) above
attributable to goods and services of foreign origin eligible for
financing under the limits and under the conditions determined by the
French Authorities and which have been approved for financing by the
French Authorities is [●].
|
We attach
corresponding supporting documents.
|
|
(d)
|
The
[Satellite Construction
Contract] / [Launch Services
Contract] is in full force and effect and no default by us has
occurred and is continuing since the date of the last Utilisation Request
(or, if none, the date of the COFACE
Facility Agreement);
|
|
|
(e)
|
The
amount referred to in paragraph 3(a) above does not include any
amount in respect of any matter which is the subject of any legal
proceedings, nor to the best of our actual knowledge and belief will it
become the subject of legal proceedings;
and
|
|
|
(f)
|
We
undertake to supply you with such information and documentation, and such
clarification, as you advise us is necessary in connection with the COFACE
Insurance Policy and we agree we shall not hold you responsible for any
delay in meeting this request for a Loan occasioned by our making such
request for information.
|
Yours
faithfully,
For and
on behalf of [Thales Alenia
Space, France] / [Arianespace,
France]
_______________________
|
(Authorised
Signatory)
|
199
SCHEDULE
19
KEY
PERFORMANCE INDICATORS
North
America
|
Key Performance Indicators
|
Quarter Ended
|
|
|
Subscribers
(by product line)
|
||
|
Gross
Additions (by product line)
|
||
|
Net
Additions (by product line)
|
||
|
Churn
(by product line)
|
||
|
ARPU
(by product line)
|
||
|
Minutes
of Use
|
|
Rest
of the World
|
Key Performance Indicators
|
Quarter Ended
|
|
|
Subscribers
(by product line)
|
||
|
Gross
Additions (by product line)
|
||
|
Net
Additions (by product line)
|
||
|
Churn
(by product line)
|
||
|
ARPU
(by product line)
|
||
|
Minutes
of Use
|
|
200
SCHEDULE
20
TRANSACTIONS
WITH AFFILIATES
|
1.
|
Thermo
Facility Agreement.
|
|
2.
|
For
the years ended 31 December 2007 and 2008 and the
three (3) months ended 31 March 2009, the Borrower recorded
approximately US$201,000, US$219,000 and US$44,000, respectively for
general and administrative expenses incurred by Thermo Capital Partners,
L.L.C. on the Borrower’s behalf. Additionally, for the years
ended 31 December 2007 and 2008 and the three (3) months
ended 31 March 2009, the Borrower recorded US$420,000, US$449,000 and
US$112,000, respectively, of non-cash expenses related to services
provided by officers of Thermo Capital Partners, L.L.C. and accounted for
as a contribution of capital.
|
|
3.
|
Reseller
Agreement between Globe Wireless LLC and Globalstar USA, LLC dated
12 November 2007. Xxx Xxxxx, who serves as a member of the
Borrower’s board of directors, is chairman of Globe Wireless LLC, a
company from which the Borrower purchased approximately US$7,700,000 of
services and equipment in 2008.
|
|
4.
|
Xxxxx
Xxxxxx’x option to purchase 120,000 shares of common stock of the Borrower
at US$2.67 per share.
|
|
5.
|
Xxxxxx
Xxxxx’x options to purchase 1,264,744 shares of common stock of the
Borrower at various exercise prices pursuant to a letter agreement between
Xx. Xxxxx and the Borrower dated 1 May
2008.
|
|
6.
|
On
29 April 2009, Thermo purchased 746,269 shares of common stock of the
Borrower at US$0.67 per share pursuant to a stock purchase agreement by
and between Thermo and the
Borrower.
|
|
7.
|
On
13 May 2009, Thermo purchased 645,161 shares of common stock of the
Borrower at US$0.775 per share pursuant to a stock purchase agreement by
and between Thermo and the
Borrower.
|
|
8.
|
On
15 May 2009, Thermo exchanged US$7,500,000 of senior secured indebtedness
owed to it by the Borrower under the Thermo Facility Agreement for
10,000,000 shares of common stock of the Borrower at US$0.75 per
share.
|
|
9.
|
See
Schedule 22 for a description of the Equity Plan (defined
therein).
|
|
10.
|
Upon
Financial Closing, Thermo will convert into share capital of the Borrower
all of the Financial Indebtedness owed by the Borrower (including pursuant
to the Thermo Facility Agreement); see Item 10, Schedule
2.
|
|
11.
|
Upon
Financial Closing and if a third-party does not make such a contribution,
Thermo will contribute at least forty five million Dollars (US$45,000,000)
of equity by way of share capital or subordinated shareholder loans; see
Item 11, Schedule 2.
|
|
12.
|
The
Thermo Cash Contribution Agreement will be entered into at Financial
Close.
|
201
|
13.
|
An
agreement between the Borrower and Thermo with respect to the terms of
investment if funds in the Thermo Contingent Equity Account are drawn,
which will be entered into if and when
required.
|
202
SCHEDULE
21
EXISTING
LOANS, INVESTMENTS AND ADVANCES
|
1.
|
Open
end promissory note in the maximum principal amount of US$10,000,000 dated
23 March 2006 from Globalstar de Venezuela, C.A. to Globalstar Canada
Satellite Co., having a balance outstanding of US$912,029 as of
31 March 2009.
|
|
2.
|
Open
end line of credit promissory note in the maximum principal amount of
US$50,000,000 dated 30 June 2007 and amended 31 December 2008
from Globalstar Canada Satellite Co. to the Borrower, having a balance
outstanding of US$28,359,863 as of 31 March
2009.
|
|
3.
|
The
Borrower owns 1,154,442 shares of Series B Preferred Shares of Open
Range Communications, Inc. pursuant to an amended and restated preferred
stock purchase agreement among the Borrower, Open Range, and the
Purchasers named therein dated as of 9 January
2009.
|
|
4.
|
As
of 31 March 2009, the Borrower owned 180,000,000 ordinary shares of
Globaltouch (West Africa) Limited pursuant to a Share Purchase Agreement
between the Borrower and Globaltouch (West Africa) Limited dated
16 October 2007.
|
|
5.
|
The
Borrower owns 90,909 common shares of GMC Guardian Mobility
Corporation.
|
203
SCHEDULE
22
INCENTIVE
PLAN
Globalstar 2006
Equity Incentive Plan - The Borrower’s 2006 Equity Incentive Plan (the
“Equity Plan”) is a
broad based, long-term retention programme intended to attract and retain
talented employees and align stockholder and employee
interests. Approximately 100,000 and 2,100,000 restricted stock
awards and restricted stock units (including grants to both employees and
executives) were granted during the three (3) and
nine (9) months ended 30 September 2008,
respectively. In January 2008, the Borrower’s Board of Directors
approved the addition of approximately 1,700,000 shares of the Borrower’s common
stock to the shares available for issuance under the Equity Plan. The
Borrower’s stockholders approved the Amended and Restated Equity Plan on
13 May 2008, which added an additional 3,000,000 shares of the
Borrower’s common stock to the shares available for issuance under the Equity
Plan. In January 2009, approximately 2,700,000 shares of the
Borrower’s common stock were added to the shares available for issuance under
the Equity Plan by its terms.
Designated
Executive Award Agreement - In August 2007, the Borrower terminated its
Executive Incentive Compensation Plan with five of its executive officers and
entered into a new Designated Executive Award Agreement with each of those
officers. Each award agreement provides that the executive officer
will receive awards of restricted shares of the Borrower’s common stock under
the Equity Plan. Total benefits per executive officer (valued at the
grant date) are approximately US$6,000,000. These new award
agreements extend the vesting period by up to two years through 2011 and provide
for payment in shares of the Borrower’s common stock instead of
cash. One of the five executive officers left the employ of the
Borrower in January 2009 and agreed to provide consulting services through the
end of 2009. If he fulfills all the terms of his consulting
agreement, he will receive all but US$750,000 of the original award in
accordance with a modified vesting schedule.
204
SCHEDULE
23
GROUP
STRUCTURE CHART
205
206
SCHEDULE 24
DISCLOSURES
|
1.
|
Clause 18.3
|
Non-Conflict
with Other Obligations
|
|
|
(a)
|
Pursuant
to a stockholders voting agreement among the shareholders of Open Range
Communications, Inc., the Borrower must receive consent from other
shareholders of Open Range in order to pledge its shares pursuant to the
Stock Pledge Agreement.
|
|
|
(b)
|
The
obligations of the Borrower pursuant to the Thermo Facility Agreement will
be released at Financial Closing.
|
|
2.
|
Clause 18.5
|
No
Proceedings Pending or Threatened
|
|
|
(a)
|
IPO
Securities Litigation. On 9 February 2007, the
first of three (3) purported class action lawsuits was filed
against the Borrower, its CEO and its CFO in the Southern District of New
York alleging that its registration statement related to its initial
public offering in November 2006 contained material misstatements and
omissions. The Court consolidated the three cases as Ladmen
Partners, Inc. v. Globalstar, Inc., et al., Case
No. 1:07-CV-0976 (LAP), and appointed Connecticut Laborers’ Pension
Fund as lead plaintiff. On 30 September 2008, the court
granted the Borrower’s motion to dismiss the plaintiffs’ Second Amended
Complaint with prejudice. On 28 April 2009, the parties
notified the court that they had reached a settlement in
principle. The settlement amount is $1.5 million, all or most
of which will be paid by the Borrower’s
insurer.
|
|
|
(b)
|
Stickrath
v. Globalstar, Inc. On 7 April 2007, Xxxxxxx
Xxxxxxxxx and Xxxxxx Xxxxxxxxx filed a purported class action complaint
against the Borrower in the U.S. District Court for the Northern
District of California, Case No. 07-cv-01941. The
complaint is based on alleged violations of California Business &
Professions Code § 17200 and California Civil Code § 1750, et seq., the Consumers’
Legal Remedies Act. In July 2008 the Borrower filed a
motion to deny class certification and a motion for summary
judgment. The court deferred action on the class certification
issue but granted the motion for summary judgment on 22 December
2008. The court did not, however, dismiss the case with
prejudice but rather allowed counsel for plaintiffs to amend the complaint
and substitute one or more new class representatives. On
16 January 2009, counsel for the plaintiffs filed a Third Amended
Class Action Complaint. The Borrower filed its answer on
2 February. The Borrower will continue to seek to have
class certification denied and the case dismissed with
prejudice.
|
207
|
|
(c)
|
Appeal of
FCC S-Band Sharing Decision. This case is Sprint Nextel
Corporation’s petition in the U.S. Court of Appeals for the District
of Columbia Circuit for review of, among others, the FCC’s 27 April
2006, decision regarding sharing of the 2496-2500 MHz portion of the
Borrower’s radio frequency spectrum. This is known as “The S-band Sharing
Proceeding”. The Court of Appeals has granted the FCC’s
motion to hold the case in abeyance while the FCC considers the petitions
for reconsideration pending before it. The Court has also
granted the Borrower’s motion to intervene as a party in the
case. The Borrower cannot determine when the FCC might act on
the petitions for reconsideration.
|
|
|
(d)
|
Appeal of
FCC L-Band Decision. On 9 November 2007, the FCC
released a Second Order on Reconsideration, Second Report and Order and
Notice of Proposed Rulemaking. In the Report and Order portion
of the decision, the FCC effectively decreased the L-band spectrum
available to the Borrower while increasing the L-band spectrum available
to Iridium by 2.625 MHz. On 5 February 2008, the Borrower
filed a notice of appeal of the FCC’s decision in the U.S. Court of
Appeals for the D.C. Circuit. Briefs were filed and oral
argument was held on 17 February 2009. On 1 May 2009, the
court issued a decision denying the Borrower’s appeal and affirming the
FCC’s decision. The Borrower is considering its further
options. Additionally, on 15 October 2008, the FCC issued an
order requiring the Borrower to conform its international use of the
L-band spectrum with the 9 November 2007 order. The Borrower
has filed a petition with the FCC challenging this order, which remains
pending.
|
|
|
(e)
|
Appeal of
FCC ATC Decision. On 31 October 2008, the FCC
issued an Order granting the Borrower modified Ancillary Terrestrial
Component (“ATC”)
authority. The modified authority allows the Borrower and Open
Range Communications, Inc. to implement their plan to roll out ATC service
in rural areas of the United States. On 1 December 2008,
Iridium Satellite filed a petition with the U.S. Court of Appeals for
the District of Columbia Circuit for review of the FCC’s
Order. On the same day, CTIA-The Wireless Association
petitioned the FCC to reconsider its Order. The court has
granted the FCC’s motion to hold the appeal in abeyance pending the FCC’s
decision on reconsideration.
|
|
|
(f)
|
FCC Shared
L-Band Decision. On 21 January 2009, Iridium
Satellite LLC filed a Petition to Deny the Borrower’s request for
temporary authority to continue operating in the spectrum between 1618.725
and 1621.35MHz in the United States. The Borrower filed an
Opposition to Iridium Satellite LLC’s Petition to Deny on 2 February
2009. In its Opposition, the Borrower stated that, although it
has now has ceased operating in this spectrum in the United States and at
certain of the gateways that were the subject of its Request temporary
authority, it has been unable to do so from all of those
gateways. On 17 December 2008, the FCC informed the
Borrower that it expects the Borrower to operate in full compliance with
the terms of the FCC’s 15 October 2008 Order of Modifications pending
the FCC’s consideration of the Borrower’s Request for temporary authority,
which remains pending. On 21 April 2009, the FCC’s Enforcement
Bureau sent a letter to the Borrower inquiring into certain aspects of the
Borrower’s operations in the spectrum between 1618.725 and 1621.35 MHz
following the effective date of that Order. The 21 April 2009
letter also inquired into certain changes to the configuration of the
Borrower’s satellite constellation that occurred after the FCC granted the
Borrower’s application to modify the constellation on 28 January
2005. The Borrower must respond to the letter inquiry by 21 May
2009.
|
208
|
|
(g)
|
Patent
Infringement Allegation. On 2 July 2008,
the Borrower’s subsidiary, Spot LLC, received a notice of patent
infringement from Xxxxxxxx Research and Development. Xxxxxxxx
asserts that the process used to manufacture the Spot Satellite Personal
Tracker violates a U.S. patent held by Xxxxxxxx. The
manufacturer, Axonn LLC, has assumed responsibility for managing the case
under an indemnity agreement with the Borrower and Spot
LLC. Axonn was unable to negotiate a mutually acceptable
settlement with Xxxxxxxx, and on 14 January 2009, Xxxxxxxx filed a
complaint against Axonn LLC, Spot LLC and the Borrower in the
U.S. District Court for the Southern District of
California. The Borrower has filed an answer and counterclaim
and a motion to stay the proceedings pending completion of the
re-examination of the subject patent, which is now
underway.
|
|
|
(h)
|
YMax
Communications Corp. v. Globalstar, Inc. and Spot
LLC. On 6 May 2009, YMax Communications Corp. filed a
patent infringement complaint against the Borrower and its subsidiary,
Spot LLC, in the Delaware U.S. District Court (Civ. Action No. 09-329)
alleging that the SPOT Satellite GPS Messenger service infringes a patent
for which YMax is the exclusive licensee. The complaint follows
an exchange of correspondence between the Borrower and YMax in which the
Borrower endeavoured to explain why the SPOT service does not infringe the
YMax patent. The Borrower’s answer to the complaint is due on
26 May. The Borrower does not believe that the complaint has
merit and intends to defend itself
vigorously.
|
|
|
(i)
|
Tax
Examination. The Borrower is under a sales and use tax
examination by the California Board of Equalization for tax years ended
2005, 2006 and 2007. The Borrower believes that the amount
accrued on its books related to sales and use tax contingency is
adequate.
|
|
3.
|
Clause 18.7
|
Intellectual
Property Matters
|
|
|
(a)
|
See
items in paragraph (2)(c) to (h)
above.
|
|
|
(b)
|
The
Borrower does not yet hold a trademark for “SPOT Satellite Personal
Tracker” in the United States. Its application is being
contested by Spot Image Corporation. The case is before a
trademark examiner.
|
|
4.
|
Clause 18.22 Communications
Licenses
|
See items
in paragraph (2)(c) to (f) above in sub-section 18.5 above as well as
Schedule 15 (Communication
Licences).
209
|
5.
|
Tax
Returns and Payments
|
|
|
(a)
|
In
connection with the Borrower’s March 2008 acquisition of Loral/DASA
Globalstar, L.P. (“LDG”), the indirect
owner of Globalstar do Brasil, S.A. (“GdB”), the Borrower’s
independent gateway operator in Brazil, Loral Space & Communications,
Inc. (“Loral
Space”) agreed in the acquisition agreement to indemnify the
Borrower and its affiliates for various liabilities and claims relating to
the operation of GdB’s business prior to the closing of the acquisition,
whether known at the time of closing or that occurred prior to, but became
known after, the closing. Such indemnity includes an indemnity
for tax liabilities owed by GdB to Brazilian taxing authorities of
approximately BRL 19.5 million. A portion of these tax
liabilities are currently being paid in monthly installments by GdB, with
Loral Space reimbursing GdB for such payments pursuant to a process set
forth in the LDG acquisition agreement. The Borrower recently
became aware of another potential tax liability which would be covered
under the indemnification described
above.
|
|
|
(b)
|
The
Borrower’s predecessor entity, Globalstar, L.P. is under an income tax
audit by the Internal Revenue Service for tax year 2004 with respect to
income taxes. The Borrower is not responsible for any unpaid
taxes of Globalstar, L.P., but this audit could potentially affect the
size of net operating losses, in the form of a deferred tax asset, it may
be permitted to carry forward in accordance with GAAP. The
Borrower does not believe that any decrease or increase in its deferred
tax asset would have any impact on its tax liability in the foreseeable
future.
|
|
|
(c)
|
The
Borrower is under an income tax audit for tax years 2004 and 2005 when it
operated as Globalstar, LLC and was taxed as a partnership. The
Borrower believes that the amount recorded on its books, including
penalties and interest, if any, related to this income tax audit is
sufficient.
|
210
SCHEDULE
25
FORM
OF PROMISSORY NOTE
|
Note
P 1 n° ......
|
US$
.........................
|
|
(amount
in figures)
|
............
, ………
(place
and date of issue)
For
..................
(date of
payment)
We hereby
agree to pay against this note to the order of .BNP
PARIBAS........................................
........................................................... the amount
of................ US Dollars (amount in letters).
This note
is expressly exempted from protest.
This note
is governed by [English/French law].
Issued
under the COFACE Facility Agreement dated June 5th,
2009
|
Issuer
|
||
|
GLOBALSTAR,
INC
|
||
|
000
Xxxxx Xxxxxxxx Xxxx
|
||
|
Xxxxxxxx,
XX 00000
|
For
: GLOBALSTAR, INC.
|
|
|
United
States of America
|
||
|
Domiciliation
|
Name
: ................................
|
|
|
BNP
PARIBAS
|
Title
: ................................”
|
|
|
00,
xx xxx Xxxxxxxx
|
||
|
00000
Xxxxx
|
||
|
(Xxxxxx)
|
||
1 Replace
with "I" for promissory notes of interest
211
SCHEDULE
26
SUBSIDIARY
GUARANTORS
|
1.
|
GSSI,
LLC, a limited liability company organised in Delaware, United States of
America, with organisational identification number 3732317 and whose
chief executive office is at 000 X. Xxxxxxxx Xxxx., Xxxxxxxx, XX
00000;
|
|
2.
|
Globalstar
Security Services, LLC, a limited liability company organised in Delaware,
United States of America, with organisational identification
number 3747502 and whose chief executive office is at 000
X. Xxxxxxxx Xxxx., Xxxxxxxx,
XX 00000;
|
|
3.
|
Globalstar
C, LLC, a limited liability company organised in Delaware, United States
of America, with organisational identification number 3732313 and
whose chief executive office is at 000 X. Xxxxxxxx Xxxx., Xxxxxxxx,
XX 00000;
|
|
4.
|
Globalstar
USA, LLC, a limited liability company organised in Delaware, United States
of America, with organisational identification number 2663064 and
whose chief executive office is at 000 X. Xxxxxxxx Xxxx., Xxxxxxxx,
XX 00000;
|
|
5.
|
Globalstar
Leasing LLC, a limited liability company organised in Delaware, United
States of America, with organisational identification number 3731109
and whose chief executive office is at 000 X. Xxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000;
|
|
6.
|
Spot
LLC, a limited liability company organised in Colorado, United States of
America, with organisational identification number 20071321209 and
whose chief executive office is at 000 X. Xxxxxxxx Xxxx., Xxxxxxxx,
XX 00000;
|
|
7.
|
ATSS
Canada, Inc., a corporation incorporated in Delaware, United States of
America, with organisational identification number 2706412 and whose
chief executive office is at 000 X. Xxxxxxxx Xxxx., Xxxxxxxx,
XX 00000;
|
|
8.
|
Globalstar
Brazil Holdings, L.P., a limited partnership formed in Delaware, United
States of America, with organisational identification number 2453576
and whose chief executive office is at 000 X. Xxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000;
|
|
9.
|
GCL
Licensee LLC, a limited liability company organised in Delaware, United
States of America, with organisational identification number 4187922
and whose chief executive office is at 000 X. Xxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000;
|
|
10.
|
GUSA
Licensee LLC, a limited liability company organised in Delaware, United
States of America, with organisational identification number 4187919
and whose chief executive office is at 000 X. Xxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000; and
|
|
11.
|
Globalstar
Licensee LLC, a limited liability company organised in Delaware, United
States of America, with organisational identification number 4187920
and whose chief executive office is at 000 X. Xxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000.
|
212
SCHEDULE
27
INVESTMENT
POLICY
|
1.
|
Purpose
|
This
document outlines the Borrower’s Corporate Investment policy. The
main objectives of the investment policy are:
|
|
(a)
|
To ensure the safety and
preservation of principal. The Borrower shall only
invest in instruments and accounts with the lowest level of default and
volatility risk. The Borrower shall use other methods to
minimize risk such as diversifying the investment portfolio to minimize
the adverse affects of the failure of any one issuer or
broker.
|
|
|
(b)
|
To coincide with its short-term
liquidity needs. The Borrower’s investment policy
contemplates buying only the securities that have active secondary markets
to provide immediate liquidity, when
needed.
|
|
|
(c)
|
To offer maximum return without
compromising the Borrower’s stated investment
objectives.
|
|
|
(d)
|
To provide fiduciary
control.
|
|
2.
|
Approved
Investment Vehicles
|
In order
to meet the Borrower’s stated investment objectives, it must choose between
several different investment options available to it. The following
options have been identified for the Borrower for meeting its investment
objectives as stated above.
|
|
(a)
|
Corporate Savings
Accounts. The account must
be fully collateralized by instruments issued by the US
Treasury.
|
|
|
(b)
|
Corporate Money Market Funds,
Repurchase Agreements, and Commercial Paper. The funds
must meet the following criteria:
|
|
|
(i)
|
the
investment objectives and policies must be substantially similar to those
set forth in this guideline, i.e., principal preservation and risk
mitigation;
|
|
|
(ii)
|
the
funds must offer immediate redemption of shares upon request;
and
|
|
|
(iii)
|
the
funds load or sales charges are not excessive, relative to those of other
potential investments meeting the
objectives.
|
213
|
3.
|
U.S. Government
obligations
|
T-Bills
or bonds of short-term or medium-term maturity. At any given time,
the Borrower may have invested in one or all of the above mentioned investment
vehicles. However, under no circumstances will the Borrower make
investment decisions contrary to its investment objectives.
|
4.
|
Credit
Quality
|
Except
for U.S. Treasury, all securities must be rated by Standard and Poor’s or
Xxxxx’x Investors Services, and shall be of high credit quality (A-1 and P-1 or
better).
|
5.
|
Marketability
|
All
holdings should be sufficient in size and held in issues which are traded
actively to facilitate timely transactions at a minimum cost and accurate market
evaluation.
|
6.
|
Trading
|
All
purchases and sales shall be executed at the best net price with principal
dealers and banks in the particular securities. All securities
purchased shall be in the name of the Globalstar L.P. or its
designate.
|
7.
|
Responsibility
and Authorization
|
The Chief
Financial Officer has reviewed this investment policy. Revisions to
this policy will be initiated by the Chief Financial Officer and implemented
upon approval of the Borrower’s Chief Executive Officer and the
President.
The Chief
Financial Officer shall have the authority to:
|
|
(a)
|
open
accounts with brokers, investment banks, commercial bank, and mutual funds
companies;
|
|
|
(b)
|
establish
safekeeping accounts or other arrangements concerning the custody of the
securities; and
|
|
|
(c)
|
execute
documents to effect the above, as
necessary.
|
In
addition, the Chief Financial Officer or his or her designate is expected to
monitor the portfolio and cash management policy for suitably in light of
then-current corporate and market conditions. The Borrower may use
the services of investment firms, brokers, or mutual funds companies for its
investment program. All investment firms, brokers, and mutual fund
companies must be personally approved by the Chief Financial Officer of the
Borrower.
214
SCHEDULE
28
LOSS
PAYEE CLAUSE
Loss
Payments
The
insured irrevocably shall authorise and instruct the insurer to pay, all claims,
return premiums, ex
gratia settlements and any other monies payable to the insured, under or
in relation to this policy, to the account in the name of the insured and opened
on the books of the following Account Bank:
|
Bank
|
– BNP
Paribas
|
|
Account
Name
|
– Insurance
Proceeds Account
|
|
Account Number
|
–
|
or to
such other account as the Security Agent, as loss payee may specify in writing,
and that no instruction, whether by the insured or by any person other than the
Security Agent, to make any payment to any other person or account shall be
honoured by the Security Agent and the insurer unless given or countersigned by
the Security Agent, or such other person as that the Security Agent may notify
to the insurer in writing.
All such
payments shall be made by the insurer without any deduction or set-off on any
account or of any kind, other than in respect of unpaid premiums. A
payment to the loss payee in accordance with this clause shall, to the extent of
that payment, discharge the liability of the insurer to pay the insured or other
claimant insured party.
215
SCHEDULE
29
REPAYMENT
SCHEDULE
|
Repayment
Date
|
Principal
Repayment Percentage
|
|||
|
First
Repayment Date (“FRD”)
|
2.85 | % | ||
|
FRD
+ 6 Months
|
2.99 | % | ||
|
FRD
+ 12 Months
|
5.07 | % | ||
|
FRD
+ 18 Months
|
5.24 | % | ||
|
FRD
+ 24 Months
|
5.38 | % | ||
|
FRD
+ 30 Months
|
5.55 | % | ||
|
FRD
+ 36 Months
|
5.70 | % | ||
|
FRD
+ 42 Months
|
5.88 | % | ||
|
FRD
+ 48 Months
|
6.04 | % | ||
|
FRD
+ 54 Months
|
6.22 | % | ||
|
FRD
+ 60 Months
|
6.41 | % | ||
|
FRD
+ 66 Months
|
6.60 | % | ||
|
FRD
+ 72 Months
|
6.79 | % | ||
|
FRD
+ 78 Months
|
7.00 | % | ||
|
FRD
+ 84 Months
|
7.21 | % | ||
|
FRD
+ 90 Months
|
7.42 | % | ||
|
Final
Maturity Date
|
7.65 | % | ||
216
SCHEDULE
30
FORM
OF QUARTERLY HEALTH REPORT
Part
A
Satellite
Status
|
Orbital
Plane
|
In-Plane
Slot
Location
|
Satellite
Flight
Model
Number
|
Satellite
Status as of
[●]
|
|||
|
[●]
|
[●]
|
[●]
|
[●]
|
217
Part
B
Band
Status
|
Satellite
Flight
Model
Number
|
L-Band
Status
|
S-Band
Status
|
Status
of Command
Telemetery
Receiver
|
|||
|
[●]
|
[●]
|
[●]
|
[●]
|
218
Part
C
Material
Events
[Attached
is a letter providing details of material or unusual events that have occurred
with respect to the Satellites since the delivery to the COFACE Agent of the
last quarterly report.]
219
SCHEDULE
31
SATELLITE
PERFORMANCE CRITERIA
|
IOT
Criteria to Declare Satellite Stabilization
Bus
|
||||||
|
Parameter
|
Status
|
|||||
|
SHM
acquisition- check satellite configuration
|
NOMINAL/FAIL
|
|||||
|
Solar
Array Wings Deployed
|
NOMINAL/FAIL
|
|||||
|
Telemetry
Transmitters “ON”
|
NOMINAL/FAIL
|
|||||
|
Telemetry
Tx EIRP (Nominal Unit) within 3dB of prediction
|
YES/NO
|
Value
|
||||
|
Telemetry
Tx EIRP (Redundant Unit) within 3dB of prediction
|
YES/NO
|
Value
|
||||
|
Telemetry
Signal Successfully Received by Ground Station
|
NOMINAL/FAIL
|
|||||
|
Command
Rx Sensitivity (Nominal Unit) with in 3dB of prediction
|
YES/NO
|
Value
|
||||
|
Command
Rx Sensitivity (Redundant Unit) within 3dB of prediction
|
YES/NO
|
Value
|
||||
|
EAM
acquisition after SHM
|
NOMINAL/FAIL
|
|||||
|
NOM
acquisition after EAM
|
NOMINAL/FAIL
|
|||||
|
Heaters
“ON”
|
NOMINAL/FAIL
|
|||||
|
Successful
orbit raising to 1414 km orbit (thruster check)
|
NOMINAL/FAIL
|
|||||
|
Expended
100K or fewer thruster pulses; 90kg of propellant
|
YES/NO
|
Value
|
||||
|
Battery
DOD less than 15%
|
YES/NO
|
Value
|
||||
|
PAYLOAD
|
||||||
|
Good
health check of transponders
|
Turn
On
|
Nominal
operations
|
||||
|
Test
all 16 beams of C-S Transponder
|
1.1V
|
2.65V
|
4.0V
|
|||
|
X1
|
NOMINAL/FAIL
|
NOMINAL/FAIL
|
NOMINAL/FAIL
|
|||
|
X2
|
||||||
|
X3
|
||||||
|
X4
|
||||||
|
X5
|
||||||
|
X6
|
||||||
|
X7
|
||||||
|
X8
|
||||||
|
Y1
|
||||||
|
Y2
|
||||||
|
Y3
|
||||||
|
Y4
|
||||||
|
Y5
|
||||||
|
Y6
|
||||||
|
X0
|
||||||
|
X0
|
||||||
|
Test
all 16 beams of L-C Transponder
|
||||||
|
X5
|
NOMINAL/FAIL
|
|||||
|
X7
|
||||||
|
Y1
|
||||||
|
X3
|
||||||
|
Y5
|
||||||
|
X4
|
||||||
|
Y7
|
||||||
|
X1
|
||||||
|
Y6
|
||||||
|
X2
|
||||||
|
Y4
|
||||||
|
X8
|
||||||
|
Y3
|
||||||
|
X6
|
||||||
|
X0
|
||||||
|
X0
|
||||||
220
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
221
SIGNATORIES
THE
BORROWER
GLOBALSTAR,
INC.
|
By:
|
/s/ Xxxxx Xxxxxx III
|
|
Name:
|
Xxxxx
Xxxxxx III
|
|
Title:
|
Chief
Executive Officer
|
|
Date:
|
5
June 2009
|
|
Address:
|
Globalstar,
Inc.
|
|
000
X. Xxxxxxxx Xxxx.
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Xxxxxx
Xxxxxx of America
|
222
THE
COFACE AGENT
BNP
PARIBAS
|
By:
|
/s/
Xxxxxx Xxxxx
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
Head
of Export Finance - Americas
|
|
Date:
|
5
June 2009
|
|
Address:
|
00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx
|
223
MANDATED
LEAD ARRANGER
BNP
PARIBAS
|
By:
|
/s/
Xxxxxx
Xxxxx
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
Head
of Export Finance - Americas
|
|
Date:
|
5
June 2009
|
|
Address:
|
00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx
|
224
MANDATED
LEAD ARRANGER
SOCIÉTÉ
GÉNÉRALE
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
Name:
|
Xxxxxxx Xxxxx |
|
Title:
|
Managing Director |
|
Date:
|
5
June 2009
|
|
Address:
|
Tour
Xxxxxxx Xxxxxxxx, 00, cours Valmy, 92800 Puteaux, Paris,
France
|
225
MANDATED
LEAD ARRANGER
NATIXIS
|
By:
|
/s/ Xxxx-Xxxxx XXXXX
|
|
Name:
|
Xxxx-Xxxxx
XXXXX
|
|
Title:
|
Structured
Export Finance, Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
NATIXIS,
00-00 Xxxx xx xx Xxxxx, 00000, Xxxxx, Xxxxxx
|
|
By:
|
/s/ Arnaud SARRET
|
|
Name:
|
Arnaud
SARRET
|
|
Title:
|
Structured
Export Finance, Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
NATIXIS,
00-00 Xxxx xx xx Xxxxx, 00000, Xxxxx,
Xxxxxx
|
226
MANDATED
LEAD ARRANGER
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK (FORMERLY CALYON)
|
By:
|
/s/ Didier Laffron
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
Title:
|
Executive
Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
|
By:
|
/s/ Xxxxxxxx Bambuck
|
|
Name:
|
Xxxxxxxx
Bambuck
|
|
Title:
|
Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
227
MANDATED
LEAD ARRANGER
CRÉDIT
INDUSTRIEL ET COMMERCIAL
|
By:
|
/s/ Xxxxxxx-Xxxxxxxx
Xxxxxxxx
|
|
Name:
|
Xxxxxxx-Xxxxxxxx
Xxxxxxxx
|
|
Title:
|
Senior
Vice-President
|
|
Date:
|
5
June 2009
|
|
Address:
|
0
xxxxxx xx Xxxxxxxx, 00000, Xxxxx
|
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
Name:
|
Xxxxxxx
Xxxxx
|
|
Title:
|
Assistant
Vice-President
|
|
Date:
|
5
June 2009
|
|
Address:
|
0
xxxxxx xx Xxxxxxxx, 00000,
Xxxxx
|
228
THE
SECURITY AGENT
BNP
PARIBAS
|
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
Head
of Export Finance - Americas
|
|
Date:
|
5
June 2009
|
|
Address:
|
00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx
|
229
THE
LENDERS
BNP
PARIBAS
|
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
Head
of Export Finance - Americas
|
|
Date:
|
5
June 2009
|
|
Address:
|
00
xxxxxxxxx xxx Xxxxxxxx, 00000 Xxxxx,
Xxxxxx
|
230
THE
LENDERS
SOCIÉTÉ
GÉNÉRALE
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
Name:
|
Xxxxxxx Xxxxx |
|
Title:
|
Managing Director |
|
Date:
|
5
June 2009
|
|
Address:
|
Tour
Xxxxxxx Xxxxxxxx, 00, cours Valmy, 92800 Puteaux, Paris,
France
|
231
THE
LENDERS
NATIXIS
|
By:
|
/s/ Xxxx-Xxxxx XXXXX
|
|
Name:
|
Xxxx-Xxxxx
XXXXX
|
|
Title:
|
Structured
Export Finance, Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
NATIXIS,
00-00 Xxxx xx xx Xxxxx, 00000, Xxxxx, Xxxxxx
|
|
By:
|
/s/ Arnaud SARRET
|
|
Name:
|
Arnaud
SARRET
|
|
Title:
|
Structured
Export Finance, Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
NATIXIS,
00-00 Xxxx xx xx Xxxxx, 00000, Xxxxx,
Xxxxxx
|
232
THE
LENDERS
CRÉDIT
AGRICOLE CORPORATE AND INVESTMENT BANK (FORMERLY CALYON)
|
By:
|
/s/ Didier Laffron
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
Title:
|
Executive
Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
|
|
By:
|
/s/ Xxxxxxxx Bambuck
|
|
Name:
|
Xxxxxxxx
Bambuck
|
|
Title:
|
Director
|
|
Date:
|
5
June 2009
|
|
Address:
|
233
CRÉDIT
INDUSTRIEL ET COMMERCIAL
|
By:
|
/s/ Xxxxxxx-Xxxxxxxx
Xxxxxxxx
|
|
Name:
|
Xxxxxxx-Xxxxxxxx
Xxxxxxxx
|
|
Title:
|
Senior
Vice-President
|
|
Date:
|
5
June 2009
|
|
Address:
|
0
xxxxxx xx Xxxxxxxx, 00000, Xxxxx
|
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
Name:
|
Xxxxxxx
Xxxxx
|
|
Title:
|
Assistant
Vice-President
|
|
Date:
|
5
June 2009
|
|
Address:
|
0
xxxxxx xx Xxxxxxxx, 00000,
Xxxxx
|
234
