Certain portions of this document have been omitted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked with “[*]” to indicate where omissions have been made. The marked information has been omitted because it is (i)...
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Certain portions of this document have been omitted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked with “[*]” to indicate where omissions have been made. The marked information has been omitted because it is (i) not material and (ii) is the type that the registrant treats as private or confidential. GUARANTEE AND COLLATERAL AGREEMENT dated as of April 3, 2023 among GLOBALSTAR, INC., as Grantor the other Grantors and the Guarantors from time to time party hereto, and [*], as Secured Party
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GUARANTEE AND COLLATERAL AGREEMENT This GUARANTEE AND COLLATERAL AGREEMENT dated as of April 3, 2023 (this “Agreement”), is entered into by and among Globalstar, Inc., a Delaware corporation (“Globalstar”), as a Grantor (as defined), the other Grantors and Guarantors (as defined) from time to time party hereto, and [*] (the “Secured Party”). PRELIMINARY STATEMENT Reference is made to (a) that certain Prepayment Agreement, entered into as of February 25, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “2023 Prepayment Agreement”), by and between Globalstar and the Secured Party and (b) that certain Amended and Restated Prepayment Agreement, dated May 10, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “2021 Prepayment Agreement” and, together with the 2023 Prepayment Agreement, the “Prepayment Agreements” and each, a “Prepayment Agreement”), between Globalstar and the Secured Party. Pursuant to the Prepayment Agreements, the Secured Party has made and has agreed to make certain prepayments to Globalstar in the amounts specified therein (the “Prepayments”), as payment in advance for the purchase of certain services by the Secured Party or its affiliates pursuant to the Supply Agreements (as defined). The obligation of the Secured Party to make the Prepayment under the 2023 Prepayment Agreement is conditioned upon, among other things, the execution and delivery of this Agreement by Globalstar and each other Grantor. Each Grantor (other than Globalstar) is an affiliate of Globalstar and is willing to execute and deliver this Agreement in order to induce the Secured Party to make the Prepayment (as defined). Accordingly, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Prepayment Agreements. Unless otherwise defined herein or in the Prepayment Agreements, capitalized terms used herein that are defined in the New York UCC shall have the meanings assigned to them in the New York UCC; provided that to the extent that the New York UCC is used to define any capitalized terms used herein and if such term is defined differently in different Articles of the New York UCC, the definition of such term contained in Article 9 of the New York UCC shall govern. Capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings assigned to them in the 2023 Prepayment Agreement. Section 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below: “2021 Prepayment Agreement” shall have the meaning assigned to such term in the preliminary statement to this Agreement.
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3 Securities Intermediary or Commodity Intermediary, as the case may be, will comply with instructions or Entitlement Orders, as applicable, originated by the Secured Party as to disposition of funds, securities or other Investment Property, as applicable, in such account, or to apply any value distributed on account of any commodity contract as directed by the Secured Party to such Commodity Intermediary, as the case may be, in each case during the existence of a Trigger Event, without further consent of any Grantor (or any Grantor’s nominee, if applicable). “Copyright License” shall mean any written agreement, now or hereafter in effect, granting any right to any third person under any Copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any Copyright now or hereafter owned by any third person, and all rights of such Grantor under any such agreement. “Copyrights” shall mean any United States or foreign copyright now or hereafter owned by any Grantor, including any registrations of any copyrights in the United States Copyright Office or any foreign equivalent office, as well as any application for a copyright registration now or hereafter made with the United States Copyright Office or any foreign equivalent office by any Grantor, including those listed on Schedule III. “Domestic Subsidiary” means a Subsidiary that is organized under the laws of a state of the United States or under the laws of the District of Columbia. “Equity Interests” means any and all shares, interests, participations, preferred equity certificates, convertible preferred equity certificates or other equivalents (however designated) of equity interests of a corporation, any and all equivalent ownership interests in a Person, including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding for the avoidance of doubt any indebtedness convertible into or exchangeable for any of the foregoing. “Excluded Assets” shall mean (a) any license or authorization issued by the FCC or issued by an equivalent regulatory authority in another country, to the extent that the granting of a security interest therein is specifically prohibited under applicable law, and (b) any intent-to-use trademark application, solely during the period in which the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the abandonment or cancellation of the applicable Grantor’s right, title or interest in, such intent-to-use trademark application or any Trademark issued as a result of such use trademark application under applicable federal law, after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral; provided that notwithstanding any of the foregoing, Excluded Assets shall not include any Proceeds of any of the foregoing assets except to the extent such Proceeds independently constitute Excluded Assets of the type described in the foregoing clauses (a) and (b). “Federal Securities Laws” shall have the meaning assigned to such term in Section 5.04. “FCC” shall mean the United States Federal Communications Commission. “Globalstar” shall have the meaning assigned to such term in the preamble to this Agreement.
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4 “Globalstar Obligations” means (a) all unsatisfied prepayment amounts, all accrued and unpaid fees and all expenses (including fees and expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), reimbursements, indemnities and all other advances to, debts, liabilities and obligations of Globalstar to the Secured Party or any [*] Affiliate (as defined in the 2023 Prepayment Agreement), in each case, arising under any of the Transaction Documents, and (b) all claims of the Secured Party arising from any failure of Globalstar to provide the Step-In Rights, in the case of each of (a) and (b), whether direct or indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising. “Grantors” shall mean (a) Globalstar, (b) each Subsidiary of Globalstar identified on Schedule I hereto, and (c) each other Person that becomes a party to this Agreement after the date hereof. “Guaranteed Obligations” shall have the meaning assigned to such term in Section 2.01. “Guarantor Obligations” means all unpaid amounts, all accrued and unpaid fees and all expenses (including fees and expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), reimbursements, indemnities and all other advances to, debts, liabilities and obligations of the Guarantors to the Secured Party, in each case, arising under the Transaction Documents (including the guarantee obligations of the Guarantors arising under Article II of this Agreement), whether direct or indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising. “Guarantors” shall mean all Grantors other than Globalstar, including (a) each Subsidiary of Globalstar identified on Schedule I hereto and (b) each other Subsidiary that becomes a party to this Agreement after the date hereof. “Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case, whether associated with the U.S., a foreign government or any political subdivision thereof, including any applicable supranational body (such as the European Union or the European Central Bank). “Indebtedness” means any Person at any date, means without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services, (c) all obligations of such Person evidenced by notes, bonds (excluding surety bonds), debentures or other similar instruments (other than an operating lease, synthetic lease or similar arrangement), (d) all indebtedness created or arising under any conditional sale or other title retention agreement (other than an operating lease) with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person in respect of capital leases; (f) all obligations of such Person, contingent or otherwise, as an account party under acceptances, surety bonds or similar
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5 arrangements (other than obligations arising out of endorsements of instruments for deposit or collection in the ordinary course of business), (g) all obligations of such Person in respect of letters of credit and surety bonds, (h) all guarantee obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) without limitation of the foregoing, all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation. “Indemnitee” shall have the meaning assigned to such term in Section 7.07. “Indenture” shall mean that certain Indenture, dated as of March 31, 2023, among Globalstar, the guarantors party thereto and Wilmington Trust, National Association, Trustee, as trustee. “Intellectual Property” shall mean all present and future intellectual property and all rights therein or associated therewith, however arising, in any jurisdiction worldwide, including (a) trade secrets, know-how, discoveries, business and technical and other information, know-how, methodologies, strategies, processes, databases, data collections and other confidential and/or proprietary information, including methods, techniques, ideas, research and development, specifications, layouts, designs, formulae, algorithms, compositions, industrial and other models, designs, industrial designs, architectures, plans, diagrams, flow charts, proposals, protocols, technical and other data, financial, business and marketing plans and proposals, customer and supplier lists, and price and cost information, (b) trademarks, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans, social media handles and other source and/or business identifiers (and all translations, adaptations, derivations and combinations of the foregoing), and the goodwill of the business relating thereto and all registrations or applications for registrations therefor, (c) works of authorship (whether or not copyrightable), moral rights (and other similar rights), copyrights and copyright registrations and copyright registration applications and all tangible and intangible property embodied therein, (d) inventions (whether or not patentable, and whether or not reduced to practice) and improvements thereto, (e) issued patents (including all reissuances, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions and counterparts thereof), patent applications, patent disclosures, and any other patent or other similar rights; industrial design applications and registered industrial designs, (f) books, records, and writings, (g) web pages, websites and related content, and URLs, (h) software programs in all forms of expression, including computer programs, operating systems, applications, routines, interfaces, algorithms, firmware, tools, applets, and all other computer instructions, code, and languages, whether in source code, object code, assembly language, compiler language, or machine code, including all error corrections, updates, upgrades, enhancements, translations, modifications, adaptations, and derivative works thereof, and other changes or functionality additions thereto, and any and all electronic data and electronic collections of data, and all documentation (including technical specifications and summaries, functional specifications, schematics, user or designer manuals or guides, training materials, designs and design documents, flow charts, logic diagrams, and white papers) related to any of the foregoing; all copies and physical manifestations, embodiments or incorporations of any of the foregoing (in whatever form or medium), (i) all license agreements related to any of the foregoing and income therefrom, and
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6 (j) all other intellectual property and rights therein, including the right to sue and recover monetary damages for all past, present and future infringements of any of the foregoing and all other common law and other rights throughout the world in and to all of the foregoing. “Intellectual Property Agreements” shall mean the agreements executed pursuant to this Agreement, in a form and substance set forth in Exhibits C, D, and E. “Key Terms Agreement” shall mean that certain Key Terms Agreement, dated as of October 21, 2019, by and between Globalstar and the Secured Party. “Launch” means, with respect to any Satellite, the point in time before lift-off of such Satellite at which risk of loss of such Satellite passes to the applicable Satellite purchaser under the terms of the applicable Satellite purchase agreement, unless risk of loss thereunder is to pass to such Satellite purchaser after lift-off, in which case “Launch” shall mean the intentional ignition of the first stage engines of the launch vehicle that has been integrated with such Satellite. “Launch Insurance” means, with respect to any Satellite, insurance for risks of loss of and damage to such Satellite attaching not later than the time of Launch and continuing at least until the successful or unsuccessful attempt to achieve physical separation of such Satellite from the launch vehicle that had been integrated with such Satellite. “License” shall mean any Patent License, Trademark License, Copyright License or other license or sublicense agreement relating to Intellectual Property to which any Grantor is a party, including those listed on Schedule III; provided that only Licenses in excess of $150,000 over the life of the License shall be listed on Schedule III. “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, hypothecation, lien, pledge, security encumbrance, charge, transfer and/or assignment for security purposes or security interest in or on such asset or (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall an operating lease be deemed to be a Lien. “Mortgages” shall mean the mortgages, hypothecs, deeds of trust, assignments of leases and rents, modifications and other security documents delivered with respect to the parcels of real property and improvements thereto delivered pursuant to Section 7.17 of this Agreement, in each case, securing the Secured Obligations, each reasonably acceptable in form and substance to the Security Party and the applicable Grantor. “Motor Vehicles” shall mean all cars, railcars, aircraft, aircraft engines, trucks, trailers, construction and earth moving equipment and other vehicles covered by a certificate of title under the laws of any state, all tires and all other appurtenances to any of the foregoing. “New York UCC” shall mean the Uniform Commercial Code as from time to time in effect in the State of New York. “Patent License” shall mean any written agreement, now or hereafter in effect, granting to any third person any right to make, use or sell any invention on which a Patent, now or hereafter
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7 owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a Patent, now or hereafter owned by any third person, is in existence, and all rights of any Grantor under any such agreement. “Patent Security Agreement” shall mean an agreement substantially in the form of Exhibit D hereto. “Patents” shall mean any patent in or to which any Grantor now or hereafter has any right, title or interest therein, and any divisions, continuations (including, but not limited to, continuations-in-parts) and improvements thereof, as well as any application for a patent now or hereafter made by any Grantor, including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein. “Perfection Certificate” shall mean a certificate substantially in the form of Exhibit B hereto, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by a Responsible Officer of the applicable Grantor. “Permits” shall mean all licenses, permits, rights, orders, variances, franchises, or authorizations of or from any Governmental Authority. “Permitted Liens” shall mean: (a) Liens in favor of the Secured Party created pursuant to the Collateral Documents; (b) Liens not otherwise permitted hereunder and in existence on the date of this Agreement and described in Schedule V; (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 material men, mechanics, carriers, warehousemen, processors or landlords for labor, 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;
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8 (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, materially detract from the value of such property or materially impair the use thereof in the ordinary conduct of any Grantor’s business; (g) 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 business consistent with past practice; (h) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security; rights of banks to set-off deposits against debts owed to such banks; (i) contractual rights of set-off relating to depository relationships in favor of the bank at which the relevant deposit account is maintained with respect to cash management and operating account relationships, incurred in the ordinary course of business; (j) Liens on insurance policies and proceeds thereof securing insurance premium financing on customary terms incurred in the ordinary course of business; (k) Leases, subleases, licenses and sublicenses of real property and non-exclusive licenses and non-exclusive sublicenses of Intellectual Property, granted to other Persons in the ordinary course of business and not for financing purposes, which, in each case, do not materially interfere with the conduct of any Grantor’s business; (l) (x) Liens with respect to obligations under capital leases that do not encumber assets other than the assets leased under such capital lease and (y) purchase money security interests in inventory and equipment; provided that (i) the security interests created pursuant to the foregoing sub-clauses (x) and (y) secure obligations not exceeding $2,000,000 in the aggregate at any one time outstanding and (ii) in the case of the foregoing clause (y), (A) such security interests are incurred, and the obligations secured thereby are created, within 120 days of the acquisition of the asset encumbered by such security interest, (B) the obligations secured thereby do not exceed 100% of the cost of the relevant asset at the time of such acquisition plus unpaid accrued interest and premium thereon and (C) such security interests do not apply to any other assets of any Grantor or any Subsidiary; (m) Requirements imposed by the FCC and other Governmental Authorities regarding any Communications License held by any Grantor and compliance with any such requirements regarding the transfer of Equity Interests of a Grantor that holds a Communications License; (n) Liens not otherwise permitted under this Agreement securing obligations not at any time exceeding in aggregate $5,000,000; and (o) Liens otherwise approved in writing by the Secured Party.
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9 “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or any other entity. “Pledged Collateral” shall have the meaning assigned to such term in Section 3.01. “Pledged Debt Securities” shall have the meaning assigned to such term in Section 3.01. “Pledged Securities” shall mean any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral. “Pledged Stock” shall have the meaning assigned to such term in Section 3.01. “Prepayment Agreements” shall have the meaning assigned to such term in the preliminary statement to this Agreement. “Prepayments” shall have the meaning assigned to such term in the preliminary statement to this Agreement. “Proceeds” shall mean proceeds as defined in Article 9 of the of the New York UCC and, in any event, shall also include (a) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Secured Party or any Grantor from time to time with respect to any of the Collateral, (b) any and all payments (in any form whatsoever) made or due and payable to any Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person acting under color of governmental authority), and (c) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral. “Related Parties” shall mean, with respect to any specified Person, such Person’s affiliates and the respective directors, trustees, officers, employees, agents, attorneys, representatives and advisors. “Responsible Officer” of any Person shall mean any executive officer (including, without limitation, the president, any vice president, secretary and assistant secretary), director or financial officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement. “Satellite” means any satellite owned by, leased to or for which a contract to purchase has been entered into by, any Grantor, whether such satellite is in the process of manufacture, has been delivered for launch or is in orbit (whether or not in operational service). “Secured Obligations” shall mean (a) in the case of Globalstar, the Globalstar Obligations and (b) in the case of any Guarantor, its Guarantor Obligations. “Secured Party” shall have the meaning assigned to such term in the preamble to this Agreement. “Security Interest” shall have the meaning assigned to such term in Section 4.01.
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10 “Specified Pledged Debt Securities” shall have the meaning assigned to such term in Section 3.02. “Step-In Rights” shall have the meaning assigned to such term in the Key Terms Agreement. “Subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, exempted limited partnership, limited liability company, exempted company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held, or (b) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of Globalstar. “Supplement” shall have the meaning assigned to such term in Section 7.18. “Supply Agreements” shall mean the Key Terms Agreement all other SOWs (as defined in the Key Term Agreement) thereunder, and all other written agreements thereunder, including all amendments and addenda. “Trademark License” shall mean any written agreement, now or hereafter in effect, granting to any third person any right to use any Trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any Trademark now or hereafter owned by any third person, and all rights of any Grantor under any such agreement. “Trademark Security Agreement” shall mean an agreement substantially in the form of Exhibit E hereto. “Trademarks” shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all trademarks, service marks, trade names, internet domain names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing), indicia and other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office (or any successor office) or any similar offices in any State of the United States or any political subdivision thereof or any foreign equivalent office, and all extensions or renewals thereof, including those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill. “Transaction Collateral” means the real, personal, and mixed (real and personal) property of the Grantors in which Liens are granted pursuant to the Collateral Documents, including the Collateral and all other “Collateral” (as defined therein), and all parcels of owned real property
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13 any dispute between Globalstar and the Secured Party with respect to the existence of any Trigger Event, (vi) any defenses, set offs or counterclaims which Globalstar may allege or assert against the Secured Party in respect of the Globalstar Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury or (vii) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in immediately available funds or other satisfaction in accordance with the terms of the applicable Prepayment Agreement and the Supply Agreements, as applicable, of all the Guaranteed Obligations (other than contingent indemnity claims unrelated to the Step-In Rights and unasserted expense reimbursement obligations)). Each Guarantor expressly authorizes the Secured Party to take and hold security for the payment and performance of the Guaranteed Obligations, to exchange, waive or release any or all such security (with or without consideration), and during the continuance of a Trigger Event, in accordance with the Transaction Documents and applicable law, to enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion or to release or substitute any one or more other Guarantors, guarantors or obligors upon or in respect of the Guaranteed Obligations, all without affecting the obligations of any Guarantor hereunder. (a) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of Globalstar or any other Guarantor or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of Globalstar or any other Guarantor, other than a defense (i) of the payment in full in immediately available funds or other satisfaction in accordance with the terms of the applicable Prepayment Agreement and the Supply Agreements, as applicable, of all the Guaranteed Obligations or (ii) that no Guaranteed Obligations are yet due and payable. The Secured Party may, at its election, upon the occurrence and during the continuance of a Trigger Event, in accordance with the Transaction Documents and applicable law, foreclose on any security held by the Secured Party by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with Globalstar or any Guarantor or exercise any other right or remedy available to it against Globalstar or any Guarantor, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full in immediately available funds or satisfied in accordance with the terms of the applicable Prepayment Agreements and the Supply Agreements, as applicable. To the fullest extent permitted by applicable law, each Guarantor waives for the benefit of the Secured Party: (i) any right to require the Secured Party, as a condition of payment or performance by such Guarantor, to (A) proceed against Globalstar, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (B) proceed against or exhaust any security held from Globalstar, any such other guarantor, or any other Person, (C) proceed against or have resort to any balance of any Deposit Account or credit on the books of the Secured Party in favor of Globalstar, any such other guarantor or any other Person, or (D) pursue any other remedy in the power of the Secured Party whatsoever; (ii) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Globalstar or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Globalstar or any other Guarantor from any cause other than the payment in full in immediately available funds or other satisfaction in accordance with
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14 the terms of the applicable Prepayment Agreement and the Supply Agreements, as applicable, of the Guaranteed Obligations (other than contingent indemnity claims unrelated to the Step-In Rights and unasserted expense reimbursement obligations); (iii) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (iv) any defense based upon the Secured Party’s errors or omissions in the administration of the Guaranteed Obligations; (v) (A) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (B) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (C) any rights to set offs, recoupments and counterclaims, and (D) promptness, diligence and any requirement that the Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (vi) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any advance, prepayment or other extension of credit to Globalstar and notices of any of the matters referred to in this Section 2.03 and any right to consent to any thereof; and (vii) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof. (b) Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than the payment in full in immediately available funds or other satisfaction in accordance with the terms of the applicable Prepayment Agreement and the Supply Agreements, as applicable, of the Guaranteed Obligations (other than contingent indemnity claims unrelated to the Step-In Rights and unasserted expense reimbursement obligations). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows: (i) Each Guarantor agrees the obligations of each Guarantor hereunder are independent of the obligations of Globalstar and the obligations of any other guarantor (including any other Guarantor) of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Globalstar or any of such other guarantors and whether or not Globalstar is joined in any such action or actions; (ii) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid; and without limiting the generality of the foregoing, if the Secured Party is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability in respect of the Guaranteed Obligations; and
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18 (b) the Pledged Stock and Pledged Debt Securities have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Stock, are fully paid and nonassessable (in each case, to the extent such concept is applicable in the relevant jurisdiction with respect to the Equity Interests of such Person after giving effect to the terms of the organizational documents of such Person, and other than any assessment of the equity holders imposed as a matter of law) and (ii) in the case of Pledged Debt Securities issued by any Grantor or any Subsidiary of Globalstar, are legal, valid and binding obligations of the issuers thereof, except to the extent that enforceability of such obligations may be limited by applicable debtor relief laws, general principles of equity and principles of good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law; (c) except for the security interests granted hereunder and under any other Collateral Document, each Grantor (i) is and, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by such Grantor, (ii) holds the same free and clear of all Liens, other than Permitted Liens that are junior in priority to the security interests granted hereunder, and (iii) will make no further assignment, pledge or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral; (d) except for restrictions and limitations imposed by applicable securities laws generally and other applicable law, and certain rights and transfer restrictions and limitations in favor of the Secured Party pursuant to the Key Terms Agreement and the Prepayment Agreements (i) the Pledged Collateral is and will continue to be freely transferable and assignable and (ii) none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that prohibits, impairs, delays or otherwise affects in any manner adverse to the Secured Party in any material respect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Secured Party of rights and remedies hereunder; (e) each Grantor (i) has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than any Permitted Liens that are junior in priority to the security interests granted hereunder), however arising, of all Persons whomsoever; (f) no consent or approval of any Governmental Authority, any securities exchange or any other Person is necessary with respect to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect or such that the failure to so obtain could not reasonably be expected to adversely affect the Secured Party in any material respect); provided that the Secured Party’s enforcement of it remedies under this Agreement as to the Pledged Collateral is subject to compliance, to the extent applicable to such enforcement of remedies, with applicable FCC law and related applicable law and regulations; (g) subject to applicable debtor relief laws, general principles of equity and principles of good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law, by virtue of the execution and delivery by each Grantor of this Agreement, when any Pledged Collateral that is required to be delivered to the Secured Party in accordance with this Agreement is delivered to the Secured Party in accordance with this Agreement, together with
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20 (iii) Each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are not prohibited by the Transaction Documents, any other contract binding upon such Grantor and applicable law; provided, however, that any noncash dividends, interest, principal or other distributions that would constitute Pledged Stock or Pledged Debt Securities of the type required to be delivered to the Secured Party in accordance with paragraphs (a) and (b) of Section 3.02, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall, subject to the terms and conditions of this Agreement, be and become part of the Pledged Collateral, and, if received by any Grantor, shall be held separate and apart by such Grantor from any of its other funds or property, shall be held in trust for the benefit of (or, if not permitted under the applicable laws, for and on behalf of) the Secured Party and shall be promptly (and in any event within ten (10) Business Days (or such later date as permitted by Secured Party)) delivered to the Secured Party in the same form as so received (with any necessary endorsement or instrument of assignment), in each case, to the extent required pursuant to Section 3.02(a) or Section 3.02(b), as applicable. (iv) The Secured Party shall execute and deliver to each Grantor, or cause to be executed and delivered to each Grantor, all such instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to receive the dividends, interest, principal and other distributions which it is entitled to exercise pursuant to paragraph (iii) above. (b) Upon the occurrence and during the continuance of a Trigger Event all rights of any Grantor to dividends, interest, principal or other distributions that such Grantor is authorized to receive pursuant to Section 3.06(a)(iii) shall cease, and all such rights shall thereupon become vested in the Secured Party, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions. After such a Trigger Event is no longer continuing, each Grantor shall have the right to receive the dividends, interest, principal or other distributions which it would be authorized to receive and retain pursuant to Section 3.06(a)(iii). All dividends, interest, principal or other distributions received by any Grantor contrary to the provisions of this Section 3.06(b) shall be held separate and apart by such Grantor from any of its other funds or property, shall be held in trust for the benefit of (or, if not permitted under the applicable laws, for and on behalf of) the Secured Party and shall be promptly (and in any event within ten (10) Business Days (or such later date as permitted by Secured Party acting in its sole discretion)) delivered to the Secured Party in the same form as so received (with any necessary endorsement or instrument of assignment reasonably requested by the Secured Party). Any and all money and other property paid over to or received by the Secured Party pursuant to the provisions of this paragraph (b) shall be retained by the Secured Party in an account to be established by the Secured Party upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02. After all Trigger Events have been cured or waived, the Secured Party shall, promptly repay to each applicable Grantor (without
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22 (viii) all Goods; (ix) all Instruments; (x) all Inventory; (xi) all Investment Property (including all Securities Accounts); (xii) all Intellectual Property; (xiii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing); (xiv) all Commercial Tort Claims as set forth in Schedule IV; (xv) all Motor Vehicles; (xvi) all Permits; (xvii) all books and records pertaining to the Article 9 Collateral; (xviii) all Supporting Obligations; and (xix) to the extent not otherwise included, all other personal property of each Grantor, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing; provided that, notwithstanding the foregoing, (1) “Article 9 Collateral” shall not include Excluded Assets and (2) except to the extent otherwise expressly requested in writing by the Secured Party, no Grantor shall be required to take any perfection actions (nor shall the Secured Party be authorized to take such perfection actions) to perfect the Security Interest with respect to (i) Motor Vehicles (other than the filing of a UCC financing statement), (ii) letter of credit rights, except to the extent constituting a Supporting Obligation (as defined under the UCC) for other Collateral as to which perfection is accomplished by the filing of a UCC financing statement (it being understood that no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement) and (iii) Commercial Tort Claims with a value of less than $150,000, individually. (b) Each Grantor hereby irrevocably (until this Agreement is terminated in accordance with Section 7.16) authorizes the Secured Party at any time and from time to time to file in any relevant jurisdiction as determined by the Secured Party in its good faith discretion any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) describe the collateral covered thereby in the same manner as described herein or contain a description of collateral that describes such property in any other manner as the Secured Party may reasonably determine is necessary, advisable or prudent to ensure the perfection or priority of the security interest in the Article 9 Collateral granted to the Secured Party in connection herewith including, describing such property as “all assets whether now owned or hereafter acquired” or “all personal property whether now owned or hereafter acquired” or
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25 the foregoing authorization and in accordance with Section 7.07; provided, however, that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as and to the extent set forth herein or in the other Transaction Documents. All sums disbursed by the Secured Party in connection with this paragraph, including reasonable and documented out-of-pocket attorney’s fees, court costs, expenses and other charges relating thereto, shall constitute additional Secured Obligations secured hereby. (d) Each Grantor irrevocably makes, constitutes and appoints the Secured Party (and all officers, employees or agents designated by the Secured Party) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence and only during the continuance of a Trigger Event, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereunder or to pay any premium in whole or part relating thereto that results in a breach of this Agreement, the Secured Party may, without waiving or releasing any obligation or liability of any Grantor hereunder or any Trigger Event, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other reasonable actions with respect thereto as the Secured Party deems advisable. All sums disbursed by the Secured Party in connection with this paragraph, including reasonable and documented out-of-pocket attorneys’ fees, court costs, expenses and other charges relating shall be payable by the Grantors to the Secured Party within ten (10) Business Days of written demand therefor, and shall be additional Secured Obligations secured hereby. (e) Subject to and solely to the extent not covered by Section 4.04(b), each Grantor shall maintain, in form and manner reasonably satisfactory to the Secured Party, records of its Chattel Paper and its books, records and documents evidencing or pertaining thereto. (f) Without limiting any provisions contained herein or in any other Transaction Document, at its option, upon the occurrence and during the continuance of a Trigger Event, the Secured Party may make advance funds to pay for any obligation of any Grantor or to make any payments necessary to maintain or preserve value (including going concern value) of the Collateral; provided, however, that nothing in this paragraph shall be interpreted as imposing any obligation on the Secured Party to (i) make any such advance of funds, or any similar advance or disbursement, or otherwise to establish any course of dealing between the Secured Party and the Grantors of any kind or nature or (ii) cure or perform any obligations or other promises of any Grantor. The making of any such advance shall not be construed as a waiver of any Trigger Event nor shall the making of any such advance be construed as a satisfaction, reinstatement, modification, amendment or extension by the Secured Party of any Secured Obligation or any Transaction Document, or as a waiver, relinquishment or forbearance by the Secured Party of any of its rights and remedies under the Transaction Documents. All advances disbursed by the Secured Party in connection with this paragraph, including reasonable and documented out-of-pocket attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable, within
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27 execute and deliver a Control Agreement. Schedule VII hereto accurately sets forth, as of the date of this Agreement, for each Grantor, each Securities Account and each Commodity Account maintained by or on behalf of such Grantor (including a description thereof and the respective account number) and the name, address and jurisdiction of the respective Securities Intermediary or Commodity Intermediary, as applicable, with which such Securities Account or Commodity Account, as applicable, is maintained. If any Grantor shall establish or maintain a Securities Account or Commodity Account that is not set forth on Schedule VII, such Grantor shall, promptly (and in any event within ten (10) Business Days from the date of such establishment or maintenance (or such later date as permitted by the Secured Party in its sole discretion)), notify the Secured Party thereof in a writing signed by such Grantor including a supplemental Schedule VII to include any such Securities Account or Commodity Account, as applicable. The Secured Party agrees with each Grantor that the Secured Party shall not give any such Entitlement Orders or instructions or directions to any such issuer, Securities Intermediary or Commodity Intermediary unless and until a Trigger Event shall have occurred and be continuing. The Secured Party agrees with each Grantor that the Secured Party shall not give any instructions or directions to any Securities Intermediary, and shall not withhold its consent to the exercise of any withdrawal rights by such Grantor, unless a Trigger Event has occurred and is continuing. The Secured Party agrees with each Grantor that the Secured Party shall not give any entitlement orders to any issuer of “uncertificated securities” (as defined in Article 8 of the New York UCC) unless a Trigger Event has occurred and is continuing. (b) Electronic Chattel Paper and Transferable Records. If any Grantor at any time holds or acquires an interest in any Electronic Chattel Paper or any “transferable record”, as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, individually or in aggregate with a value in excess of $150,000, then such Grantor shall promptly (and in any event within ten (10) Business Days from the date of such acquisition (or such later date as permitted by the Secured Party in its sole discretion)), notify the Secured Party thereof and, at the written request of the Secured Party, shall take such action as the Secured Party may request to vest in the Secured Party control under New York UCC Section 9- 105 of such Electronic Chattel Paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Secured Party agrees with such Grantor that the Secured Party will arrange, pursuant to procedures reasonably satisfactory to the Secured Party and so long as such procedures will not result in the Secured Party’s loss of control, for the Grantor to make alterations to the Electronic Chattel Paper or transferable record permitted under New York UCC Section 9-105 or, as the case may be, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless a Trigger Event has occurred and is continuing or would immediately occur after taking into account any action by such Grantor with respect to such Electronic Chattel Paper or transferable record. (c) Deposit Accounts. No Grantor maintains, or at any time after the date of this Agreement shall establish or maintain, any demand, time, savings, passbook or similar account, except for such accounts maintained with a bank (as defined in Section 9-102 of the New York UCC) whose jurisdiction (determined in accordance with Section 9-304 of the New York
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29 (c) Each Grantor (either itself or through its licensees or sublicensees) will, for each work covered by a Copyright material to any Grantor’s business, (i) maintain such Copyright as valid and in full force and effect free from any claim that such Copyright has been lost or dedicated to the public, and (ii) continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice as necessary and sufficient to establish and preserve its rights under applicable laws. (d) Each Grantor shall notify the Secured Party promptly if it knows or has reason to believe that any Patent, Trademark or Copyright material to the conduct of its business may become invalidated, unenforceable, abandoned, lost or dedicated to the public, in whole or in any part, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, United States Copyright Office or any court or similar office in a foreign jurisdiction) regarding such Grantor’s ownership of any Patent, Trademark or Copyright, its right to register the same, or its right to keep and maintain the same, in each case, subject to Section 4.06(i). (e) If any Grantor, either itself or through any agent, employee, licensee or designee, files an application for any Patent, Trademark or Copyright necessary for or material to the conduct of such Grantor’s businesses (or for the registration of any Patent, Trademark or Copyright necessary for or material to the conduct of such Grantor’s businesses) with the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States, such Grantor shall promptly (and in any event within ten (10) Business Days from the date of such filing (or such later date as permitted by the Secured Party in its sole discretion)) notify the Secured Party, and, upon request of the Secured Party, shall execute and deliver any and all agreements, instruments, documents and papers described in Section 4.01(c) as the Secured Party may request to evidence the Security Interest in such Patent, Trademark or Copyright, and each Grantor hereby appoints the Secured Party as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable. (f) Subject to Section 4.06(i), each Grantor will take all necessary steps, in such Grantor’s reasonable business judgment, that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States or in any other foreign jurisdiction or any political subdivision thereof, to maintain and pursue each material application relating to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registration of the Trademarks and Copyrights that is material to the conduct of any Grantor’s business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties. (g) In the event that any Grantor knows that any Article 9 Collateral consisting of a Patent, Trademark or Copyright necessary for or material to the conduct of such Grantor’s businesses has been infringed or misappropriated or otherwise violated by a third person, such Grantor shall, if consistent with good business judgment in such Grantor’s sole and reasonable
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30 discretion, sue for infringement, misappropriation or dilution and to recover damages for such infringement, misappropriation or dilution. (h) Upon the occurrence and during the continuance of a Trigger Event, upon request of the Secured Party, each Grantor shall use its reasonable best efforts to obtain all requisite consents or approvals by the licensor of each Copyright License, Patent License or Trademark License, and each other material License, to effect the assignment of all such Grantor’s right, title and interest thereunder to the Secured Party, or its designee. (i) Notwithstanding the foregoing, so long as no Trigger Event has occurred and is continuing, nothing in this Section 4.06 shall prevent any Grantor from disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or enforce or otherwise allowing to lapse, expire, terminate, be invalidated or put into the public domain any Intellectual Property or License that is no longer used, or useful in the business of any of the Grantors, or is no longer economically practicable to maintain, or if such Grantor determines in its reasonable business judgment that such disposal, discontinuance, abandonment, failure to pursue or allowance to lapse, expire, terminate or put into the public domain is desirable in the conduct of the business of the Grantors or is necessary under requirements of applicable law. ARTICLE V REMEDIES Section 5.01. Remedies Upon Trigger Event. Upon the occurrence and during the continuance of a Trigger Event, each Grantor agrees to deliver each item of Transaction Collateral to the Secured Party on written demand, and it is agreed that the Secured Party shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Transaction Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any or all of such Transaction Collateral by the applicable Grantor to the Secured Party, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Transaction Collateral throughout the world on such terms and conditions and in such manner as the Secured Party shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained) in connection with exercise of its remedies hereunder; and (b) with or without legal process and with or without prior notice (other than any notice requirements set forth herein) or demand for performance, to take possession of the Transaction Collateral and to the extent permitted by applicable law or the terms of the applicable lease, without liability for trespass to enter any premises leased by any of the Grantors where the Transaction Collateral may be located for a reasonable period for the purpose of taking possession of or removing the Transaction Collateral and, generally, to exercise any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Grantor agrees that the Secured Party shall have the right, subject to the mandatory requirements of applicable law and the notice required in the immediately following paragraph, to sell or otherwise dispose of all or any part of the Transaction Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Secured Party shall deem appropriate or as may be permitted by the Mortgage or applicable law with respect to real property. The Secured Party shall be authorized at any such sale (if it
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31 deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Transaction Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Secured Party shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Transaction Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Secured Party shall give each applicable Grantor no less than ten (10) days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Secured Party’s intention to make any sale of Collateral. Such written notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Secured Party may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Secured Party may (in its sole and absolute discretion) determine. The Secured Party shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Secured Party until the sale price is paid by the purchaser or purchasers thereof, but the Secured Party shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Agreement, the Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all said rights being also hereby waived and released to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to such Secured Party from any Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Secured Party shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Secured Party shall have entered into such an agreement all Trigger Event shall have been remedied and the Secured Obligations paid in full in immediately available funds or satisfied in accordance with the terms of the applicable Prepayment Agreements and the Supply Agreements, as applicable. As an alternative to exercising the power of sale herein conferred upon it, the Secured Party may proceed by a suit or suits at law or in equity to foreclose this Agreement and to
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35 Section 6.03. Subordination. Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Section 6.01 and Section 6.02 and all other rights of the Guarantors of indemnity, contribution or subrogation under applicable law or otherwise in each case, arising out of this Agreement, shall be fully subordinated to, shall not be paid prior to and shall not be asserted prior to the payment in full in immediately available funds or other satisfaction in accordance with the terms of the applicable Prepayment Agreements and the Supply Agreements, as applicable, of the Secured Obligations (other than contingent indemnity claims unrelated to the Step-In Rights and unasserted expense reimbursement obligations). No failure on the part of Globalstar or any Guarantor to make the payments required by Section 6.01 and Section 6.02 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder or under any other Collateral Document, and each Guarantor shall remain liable for the full amount of its obligations hereunder or under any other Collateral Document. ARTICLE VII MISCELLANEOUS Section 7.01. (a) Notices. Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows: (i) if to any Grantor, to such Grantor in the care of Globalstar at: Address: Globalstar, Inc. 0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Xxxxxx Xxxxxx xx Xxxxxxx Attention: Xxxxx Xxxxxx XXX / Xxx Xxxxxx Xxxxxxxxx: x000 000 000-0000 Email: xxx@xxxxxxxx.xxx; xxx@xxxxxxxx.xxx with a copy (which shall not constitute notice) to:
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36 Xxxx Xxxxxxxxxx & Xxxxxxxxx LLP 000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxxxxx Email: xxxxxxxxx@xxxxxxx.xxx (ii) if to the Secured Party, at the address and electronic mail address specified below: Address: [*] [*] [*] Attention: [*] Email: [*] with a copy (which shall not constitute notice) to: [*] [*] [*] Attention: [*] Email: [*] All such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three (3) Business Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 7.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 7.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided, that notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause (b) below shall be effective as provided in such clause (b). (b) Notices and other communications to the Secured Party hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or intranet websites) pursuant to procedures set forth herein or otherwise approved by the Secured Party. The Secured Party or Globalstar (on behalf of any Grantor) may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided, that approval of such procedures may be limited to particular notices or communications. All such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided, that any such
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39 respective rights, interests or obligations under this Agreement to any other Person (except by operation of law) without the prior written consent of the Secured Party. Any purported assignment in violation of this Section shall be null and void ab initio. Section 7.07. (a) Secured Party’s Fees and Expenses; Indemnification. Each Grantor, jointly and severally agrees, to pay all reasonable and documented out-of-pocket costs and expenses, including reasonable and documented outside attorneys’ fees and reasonable and documented out-of-pocket fees, costs and expenses of independent accountants, advisors and consultants, incurred by the Secured Party in the negotiation, preparation and administration of this Agreement and the other Collateral Documents including reasonable and documented out-of- pocket travel costs and costs and expenses or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or relating to efforts to evaluate or assess any Grantor, its business or financial condition or protect, evaluate, assess or dispose of any of the Collateral; and all reasonable and documented out-of-pocket costs and expenses, including reasonable and documented outside attorneys’ fees, fees, costs and expenses of independent accountants, advisors and consultants and costs of settlement, incurred by the Secured Party in enforcing any Secured Obligations of or in collecting any payments due from any Grantor hereunder or under the other Collateral Documents (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Collateral Documents). (b) Each Grantor agrees, jointly and severally, to indemnify the Secured Party and each Related Party thereof (the “Indemnitee”), against, and to hold each Indemnitee harmless from, any and all losses (other than lost profits), claims, damages, liabilities and related expenses, including reasonable and documented out-of-pocket counsel fees for the Indemnitees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Collateral Document or any agreement or instrument contemplated thereby to give effect to or to perfect the Security Interests, (ii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto or the plaintiff or defendant thereunder (and regardless of whether such matter is initiated by a third party, Globalstar, any other Grantor), or (iii) the enforcement of this Agreement or any other Collateral Document (including the enforcement of this Section); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its affiliates, (B) result from a successful claim brought by Globalstar or any other Grantor against the Secured Party for a material breach of Indemnitee’s obligations hereunder or under any other Collateral Document as determined in a final and non-appealable judgment by a court of competent jurisdiction or (C) arise from disputes arising solely among Indemnitees that do not involve any act or omission by any Grantor or its affiliates. (c) To the extent permitted by applicable law, no party hereto shall assert, and each hereby waives, any claim against each other party hereto and each party’s respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any other Collateral Document.
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46 the Secured Party makes no representations or warranties and will not provide any advice as to whether any insurance is adequate for purposes of the business of the Grantors. (e) In connection with the covenants set forth in this Section 7.20, it is understood and agreed that: (i) neither the Secured Party nor any of its respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 7.20, it being understood that (A) the Grantors shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Secured Party or any of its respective agents or employees (it being understood and agreed that the Grantors shall only be required to use commercially reasonable efforts to seek such waiver of subrogation rights against such parties, but in no event shall such efforts require the making of payments or material concessions in exchange for such consent). If, however, the insurance policies do not provide waiver of subrogation rights against such parties, then the Grantors hereby agree, to the extent permitted by law, to waive, their right of recovery, if any, against the Secured Party and its respective agents and employees; and (ii) the designation of any form, type or amount of insurance coverage under this Section 7.20 shall in no event be deemed a representation, warranty or advice by the Secured Party that such insurance is adequate for the purposes of the business of the Grantors or the protection of their properties. (f) Except to the extent not customary (x) in the applicable jurisdiction of a Grantor or (y) in the applicable insurance provider’s jurisdiction, each Grantor shall: (i) cause all insurance policies covering any Collateral (but, for the avoidance of doubt, excluding any public property damage policy) to be endorsed or otherwise amended to include a customary lender’s loss payable endorsement, in form and substance reasonably satisfactory to the Secured Party, which endorsement shall provide that, from and after the date hereof, if the insurance carrier shall have received written notice from the Secured Party of the occurrence of a Trigger Event, the insurance carrier shall pay all proceeds otherwise payable to the Grantors under such policies directly to the Secured Party; (ii) cause all such policies of liability insurance (other than customary D&O insurance policies) to provide that the Secured Party shall be an additional insured thereunder; (iii) cause each such policy to provide that it shall not be canceled or not renewed (1) by reason of nonpayment of premium upon not less than 10 days’ prior written notice thereof by the insurer to the Secured Party (giving the Secured Party the right to cure defaults in the payment of premiums) or (2) for any other reason upon not less than 30 days’ prior written notice thereof by the insurer to the Secured Party; and
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48 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. GRANTORS: GLOBALSTAR, INC. GSSI, LLC GLOBALSTAR C, LLC GLOBALSTAR USA, LLC GLOBALSTAR LEASING LLC SPOT LLC ATSS CANADA, INC. GLOBALSTAR BRAZIL HOLDINGS, L.P. GCL LICENSEE LLC GUSA LICENSEE LLC GLOBALSTAR LICENSEE LLC GLOBALSTAR MEDIA, L.L.C. GLOBALSTAR BROADBAND SERVICES INC. GLOBALSTAR INTERNATIONAL, LLC GLOBALSTAR HOLDING US, LLC By: Name: Title: GLOBALSTAR SECURITY SERVICES, LLC By: Name: Title:
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SECURED PARTY: [*] By: Name: Title: