Exhibit 10.2
EXECUTION COPY
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INTERCREDITOR AGREEMENT
relating to
CERTAIN GUARANTEE OBLIGATIONS
by and among
GLOBALSTAR, L.P.,
GLOBALSTAR TELECOMMUNICATIONS LIMITED,
LORAL CORPORATION,
LORAL SPACE & COMMUNICATIONS LTD.,
DASA GLOBALSTAR LIMITED PARTNER, INC.,
QUALCOMM LIMITED PARTNER, INC. and
SPACE SYSTEMS/LORAL, INC.
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dated as of April 19, 1996
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This INTERCREDITOR AGREEMENT, dated as of April 19, 1996, is by and among
GLOBALSTAR, L.P., a Delaware limited partnership ("Globalstar"), GLOBALSTAR
TELECOMMUNICATIONS LIMITED, a Bermuda company ("GTL"), LORAL CORPORATION, a New
York corporation ("Loral"), LORAL SPACE & COMMUNICATIONS LTD., a Bermuda company
("Loral SpaceCom") and DASA GLOBALSTAR LIMITED PARTNER, INC., a Delaware
corporation, QUALCOMM Limited Partner, Inc., a California corporation and SPACE
SYSTEMS/LORAL, INC., a Delaware corporation and any Partner, any Upper Tier
Partner or their respective Affiliate who shall have executed an Accession
Agreement (each a "Partner Guarantor" and collectively, the "Partner
Guarantors").
WHEREAS, Globalstar has entered into that certain Revolving Credit
Agreement, dated as of December 15, 1995, with Chemical Bank, as Administrative
Agent thereunder ("Chemical Bank"), and the Banks (the "Banks") signatory
thereto (as amended from time to time, the "Credit Agreement"); and
WHEREAS, Loral entered into that certain guarantee (the "Original
Guarantee"), dated as of December 15, 1995, pursuant to which it agreed to
guarantee in favor of the Banks the obligations of Globalstar under the Credit
Agreement; and
WHEREAS, Globalstar, GTL, Loral, Loral SpaceCom and the Partner Guarantors
signatories hereto have entered into that certain Agreement dated as of April
19, 1996 pursuant to which Globalstar has agreed to pay to Loral and the Partner
Guarantors a fee and GTL has agreed, subject to the receipt of shareholder
approval, to issue to Loral and the Partner Guarantors certain warrants (the
"Fee Agreement"); and
WHEREAS, Loral has entered into that certain Restructuring, Financing and
Distribution Agreement, dated as of January 7, 1996, with Lockheed Xxxxxx
Corporation ("Lockheed Xxxxxx"), and certain subsidiaries of Loral (the
"Distribution Agreement") pursuant to which Lockheed Xxxxxx has agreed to assume
the Original Guarantee and Loral SpaceCom has agreed to provide an
indemnification of up to $100 million under certain circumstances and Loral has
agreed in return therefor to contribute to Loral SpaceCom certain warrants and
guarantee fees to be issued or paid to it under the Fee Agreement; and
WHEREAS, on or prior to the date hereof, the Credit Agreement has been
amended to relieve Loral of its obligations under the Original Guarantee and
Lockheed Xxxxxx has executed a guarantee (the "Lockheed Xxxxxx Guarantee") in
favor of the Banks pursuant to which Lockheed Xxxxxx has agreed to guarantee
(the "Guarantee") in favor of the Banks the obligations of Globalstar under the
Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
Article I.
DEFINITIONS
Section 1.1. General. Capitalized terms used herein not otherwise defined
shall have the meanings set forth in the Fee Agreement. In addition, terms
defined in the recitals hereto shall have the respective meanings ascribed
thereto, and the following terms shall have the following meanings (such
meanings to be applicable equally to both singular and plural forms of the terms
defined):
"Acceptable Letter of Credit" shall have the meaning ascribed to such
term in the Credit Agreement.
"Accession Agreement" shall mean an agreement in the form set forth as
Exhibit B hereto.
"Affiliate" shall mean any Person that directly or indirectly
controls, is controlled by, or is under common control with the Person in
question.
"Bank" shall have the meaning ascribed to such term in the Credit
Agreement.
"Business Day" shall have the meaning ascribed to such term in the
Credit Agreement.
"Default Date" shall mean the date on which a Guarantor Default
occurs.
"Distribution" shall have the meaning ascribed to such term in the
Distribution Agreement.
"Distribution Date" shall mean the date on which the Distribution
occurs.
"Downgraded Letter of Credit" shall have the meaning ascribed to such
term in the Credit Agreement.
"Expiring Letter of Credit" shall have the meaning ascribed to such
term in the Credit Agreement.
"Guaranty Dollars" shall mean the dollar amount of Partner Cash
Collateral actually derived by Chemical Bank as of the date of
determination.
"L/C Delivery Date" shall mean the date that is ten Business Days
after the date of a L/C Delivery Notice.
"L/C Delivery Notice" shall mean a notice delivered by Globalstar to
the Partner Guarantors stating that Loans in an amount in excess of
$25,000,000 are outstanding under the Credit Agreement.
"Letter of Credit" shall have the meaning ascribed to such term in the
Credit Agreement.
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"Obligations" shall have the meaning ascribed to such term in the
Credit Agreement.
"Partner Cash Collateral" shall have the meaning ascribed to such term
in the Credit Agreement.
"Partner Cash Collateral Agreement" shall mean a cash collateral
agreement executed and delivered by a Partner Guarantor in favor of
Chemical Bank with respect to its Partner Collateral Account and Partner
Cash Collateral in the form set forth as Exhibit A hereto.
"Partner Collateral Account" shall have the meaning ascribed to such
term in the Credit Agreement.
"Partner Fee Warrant Amount" shall mean, with respect to any Partner
Guarantor, the total number of Fee Warrants set forth opposite such Partner
Guarantor's name on Schedule II to the Fee Agreement, and with respect to a
Partner Guarantor executing an Accession Agreement after the date hereof,
the total number of Fee Warrants set forth in the Accession Agreement, in
each case as such number may be adjusted from time to time in accordance
with the provisions of the Warrant certificate.
"Partner Guaranteed Amount" shall have the meaning ascribed to such
term in Section 2.1 of this Agreement.
"Participation Interest" shall mean a ratio, expressed as a
percentage, of the amount of a Partner Guarantor's participation in the
Guarantee and with respect to any Partner Guarantor, shall be as set forth
on Schedule II to the Fee Agreement, and with respect to a Partner
Guarantor executing an Accession Agreement after the date hereof, the
percentage set forth in the Accession Agreement.
"Release Date" shall have the meaning ascribed to such term in the
Credit Agreement.
"Warrant Interest" shall mean the Ordinary Partnership Interests of
Globalstar acquired pursuant to the exercise of Globalstar Warrants.
"Warrant Issuer" shall mean the issuer of the Fee Warrants.
Article II.
PARTICIPATION IN THE GUARANTEE
Section 2.1. Guarantee Participation. Each Partner Guarantor hereby agrees
to deliver to Chemical Bank on the L/C Delivery Date an Acceptable Letter of
Credit in the amount set forth opposite its name on Schedule I hereto (the
"Stated Amount"); provided, however, that the aggregate principal amount of the
Obligations being guaranteed hereby by delivering such Acceptable Letters of
Credit shall not exceed $150,000,000. Each Partner Guarantor hereby agrees that
until the Release Date, the amount of the Acceptable Letters of Credit delivered
to Chemical Bank from time to time shall at all times equal the product of $250
million times such Partner Guarantor's Participation Interest, together with 120
days of
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accrued interest on such amount calculated at a rate equal to 8% per annum and
based on an assumed year of 360 days (the "Partner Guaranteed Amount"). Each
Partner Guarantor shall deliver to Chemical Bank at least 30 days prior to the
scheduled expiration date of any Expiring Letter of Credit one or more
Acceptable Letters of Credit having an aggregate stated amount equal to the
Stated Amount. Each Partner Guarantor further agrees to deliver to Chemical Bank
as promptly as practicable upon notification from Chemical Bank or Globalstar
that the Letter of Credit delivered pursuant to this Section 2.1 shall have
become a Downgraded Letter of Credit, one or more Acceptable Letters of Credit
having an aggregate stated amount equal to the Stated Amount. Each Partner
Guarantor agrees to comply with, and be bound by, the provisions of Section 2.2
of the Credit Agreement. Each Partner Guarantor agrees to deliver on the L/C
Delivery Date to Chemical Bank a Partner Cash Collateral Agreement and such
legal opinions, resolutions, UCC financing statements and other documents as may
be reasonably requested by Chemical Bank and hereby further agrees to cause the
applicable issuer of the Acceptable Letter of Credit to deliver legal opinions,
resolutions, UCC financing statements and other documents as may be reasonably
requested by Chemical Bank (the agreements, opinions and documents described in
this sentence shall be collectively referred to as the "Supporting Documents").
Section 2.2. Certain Additional Conditions. Each Partner Guarantor hereby
agrees that if it is unable to claim the benefit of a tax treaty with the United
States that would exempt the application of a U.S. withholding tax on (i) the
issuance to such Partner Guarantor of the Fee Warrants or (ii) the payment of
the Guarantee Fee to such Partner Guarantor, then such Partner Guarantor shall,
at the request of Globalstar, pay to Globalstar the amount of any such U.S.
withholding tax imposed on Globalstar as a result of such issuance or payment.
Each Partner Guarantor further agrees that as a condition precedent to the
issuance of the Fee Warrants to it, it shall have delivered either (x) a
certificate of an officer of such Partner Guarantor stating that the issuance of
the Fee Warrants and the payment of the Guarantee Fee to such Partner Guarantor
will not result in the imposition of a withholding tax on Globalstar or (y)
funds in an amount equal to the withholding tax payable by Globalstar upon
issuance of Fee Warrants to the Partner Guarantor.
Section 2.3. Notice by Globalstar. Globalstar shall send to the Partner
Guarantors an L/C Delivery Notice as promptly as practicable after the date on
which Loans in an amount in excess of $25,000,000 are outstanding under the
Credit Agreement (the "L/C Trigger Date") and in no event later than five
Business Days after the L/C Trigger Date.
Article III.
DEFAULT BY A PARTNER GUARANTOR AND CERTAIN AGREEMENTS
Section 3.1. Default; Cancellation of Warrants. (a) In the event that (1) a
Partner Guarantor shall fail to deliver an Acceptable Letter of Credit having a
stated amount equal to the Stated Amount and the Supporting Documents by the L/C
Delivery Date, (2) a Partner Guarantor or the issuer of a Letter of Credit
delivered by such Partner Guarantor shall become insolvent or bankrupt or any of
the events set forth in clause (vi) of Section 8(a) of the Credit Agreement
shall occur with respect to the Partner Guarantor or the issuing bank, as the
case may be, (3) a Partner Guarantor shall fail to replace an Expiring Letter of
Credit and Chemical Bank shall not have derived Partner Cash Collateral in an
amount equal to the Stated Amount, or (4) a Partner Guarantor shall fail to
deliver an Acceptable Letter of Credit in substitution for a Downgraded Letter
of Credit and Chemical Bank shall not have derived Partner Cash Collateral in an
amount equal to the Stated Amount (each of such events being referred to herein
as a "Guarantor Default") and in the case of clauses (1), (3) and (4), such
Partner Guarantor shall not have cured such default within 5 Business Days after
receipt of notice thereof from either Globalstar or
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Chemical Bank, then Fee Warrants equal to the Recaptured Amount (as hereinafter
defined), which were issued to, or issuable to, such defaulting Partner
Guarantor pursuant to the terms of the Fee Agreement, shall be canceled by the
Warrant Issuer.
(b) If the Default Date shall occur prior to the Distribution Date, the
Warrant Issuer shall thereupon issue to Loral Fee Warrants equal to the
Recaptured Amount, subject to contribution immediately prior to the Distribution
by Loral to Loral SpaceCom of such amount of the Fee Warrants as determined to
be issued to Loral SpaceCom pursuant to the provisions set forth in the
following sentence. If the Default Date shall occur after the Distribution Date,
the Warrant Issuer shall thereupon issue to Loral and Loral SpaceCom Fee
Warrants equaling their respective pro rata share of the Recaptured Amount in
direct proportion to (x) the increase in the amount of indemnification to be
provided to Lockheed Xxxxxx and Loral, in the case of Loral SpaceCom, and (y)
the increase in the amount of liability in respect of the Guarantee for which
Lockheed Xxxxxx or Loral is then liable, in the case of Loral.
(c) The Recaptured Amount shall be calculated as follows:
(A) in the case of a default under clause (1) of Section 3.1(a), Fee
Warrants equal to the Partner Fee Warrant Amount shall constitute the Recaptured
Amount; and
(B) in the case of a default under clause (2) or (3) of Section 3.1(a), the
Recaptured Amount shall equal the difference between (x) the Partner Fee Warrant
Amount and (y) the product of (i) the Partner Fee Warrant Amount and (ii) the
ratio of Guaranty Dollars over the Partner Guaranteed Amount.
Section 3.2. Call Right on Warrant Shares or Warrant Interests. If the
Warrant Issuer shall be unable to cancel Fee Warrants in an amount equal to the
Recaptured Amount under Section 3.1 above because the Partner Guarantor shall
have, prior to such time, exercised such number of its Fee Warrants so that the
number of Fee Warrants then retained by such defaulting Partner Guarantor,
whether vested or unvested (the "Current Warrant Amount"), is less than the
Recaptured Amount, then Loral and/or Loral SpaceCom, as the case may be, shall
have the right to require such Partner Guarantor to transfer without any further
consideration to Loral and/or Loral SpaceCom, as the case may be, such number of
Warrant Shares or Warrant Interests, as the case may be, as shall equal the
difference between the Recaptured Amount and the Current Warrant Amount (the
"Call Right Amount"). If the Call Right Amount is greater than the amount of
Warrant Shares or Warrant Interests then held by the defaulting Partner
Guarantor, the defaulting Partner Guarantor shall purchase such number of shares
of GTL Common Stock in the open market as would be necessary to enable it to
satisfy its obligations under this Section 3.2.
Section 3.3. Termination of Guarantee Fee. In the event of a Guarantor
Default under clause (1) above, payment of any Guarantee Fee to the defaulting
Partner Guarantor pursuant to Section 2.2 hereof shall immediately terminate and
shall revert and be paid (x) if such Guarantor Default shall occur prior to the
Distribution Date, to Loral (subject to contribution by Loral to Loral SpaceCom
of the right to receive such Guarantee Fee immediately prior to the
Distribution) and (y) if such Guarantor Default shall occur after the
Distribution Date, to Loral SpaceCom. No such termination shall impair such
Partner Guarantor's obligations under Section 2.2 hereof with respect to
Guarantee Fees already paid.
Section 3.4. Reduction of Guarantee Fee. In the event of a Guarantor
Default under clause (2) or (3) of Section 3.1(a), the payment of the Guarantee
Fee to the defaulting Partner Guarantor shall be reduced and the defaulting
Partner Guarantor shall receive a Guarantee Fee equal to the product of (A) the
amount of the Guarantee Fee payable to such Partner Guarantor immediately prior
to such default times (B) the ratio of Guaranty Dollars over the Partner
Guaranteed Amount. The remaining portion of the
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Guarantee Fee shall revert and be paid (x) if such Guarantor Default shall occur
prior to the Distribution Date, to Loral (subject to contribution by Loral to
Loral SpaceCom of the right to receive such Guarantee Fee immediately prior to
the Distribution) and (y) if such Guarantor Default shall occur after the
Distribution Date, to Loral SpaceCom.
Section 3.5. Indemnification by Partner Guarantor. In the event that either
(x) the liability of Lockheed Xxxxxx or Loral under the Guarantee or (y) the
amount of indemnification being provided by Loral SpaceCom to Lockheed Xxxxxx
and Loral, shall have increased (other than any increase arising from a
Guarantor Default which shall constitute a breach of this Agreement) because of
any condition or circumstance of a Partner Guarantor which shall cause Chemical
Bank to fail to draw on all or a portion of such Partner Guarantor's Letter of
Credit or fail to apply any Partner Cash Collateral of such Partner Guarantor,
then such Partner Guarantor shall indemnify Lockheed Xxxxxx, Xxxxx and/or Loral
SpaceCom, as the case may be, with respect to such increased liability or
indemnification. Each of Lockheed Xxxxxx, Xxxxx and Loral SpaceCom hereby agrees
that a Partner Guarantor shall not be liable for any indemnification payments
under this Section 3.5 until and unless the amount of such Partner Guarantor's
Letter of Credit has been reduced by an amount equal to the indemnification
payment otherwise payable hereunder by the Partner Guarantor (the "Indemnity
Amount") or if a Partner Collateral Account shall have been established at
Chemical Bank (or any successor agent under the Credit Agreement), until such
time as the agent under the Credit Agreement shall have released monies from the
Partner Collateral Account to the Partner Guarantor in an amount equal to the
Indemnity Amount. Each Partner Guarantor hereby agrees that it shall use its
best efforts to cooperate with Lockheed Xxxxxx, Xxxxx and Loral SpaceCom, as the
case may be, to effect the foregoing, including without limitation, assigning
over to Lockheed Xxxxxx, Xxxxx or Loral SpaceCom, as the case may, such amount
of the Letter of Credit or the Partner Collateral Account released by the Banks
pursuant to the preceding sentence.
Section 3.6. Contribution. (a) If Chemical Bank shall fail to (i) draw upon
the Letters of Credit of the Partner Guarantors, (ii) realize upon the Partner
Collateral Accounts of the Partner Guarantors or (iii) call upon the obligations
of Loral or Lockheed Xxxxxx, as the case may be, under the Guarantee on a pro
rata basis based upon the respective amount of liability assumed by the Partner
Guarantors and Loral or Lockheed Xxxxxx, as the case may be, then in such event,
the Partner Guarantors and Loral or Lockheed Xxxxxx, as the case may be, who
shall have provided a disproportionately greater amount (the "Overpaying
Persons"), whether pursuant to a direct guarantee or indemnity, a Letter of
Credit or a Partner Collateral Account in favor of Chemical Bank, shall be
entitled to receive a contribution from those Persons who shall have provided a
disproportionately smaller amount (the "Underpaying Persons") in an aggregate
amount equal to the excess of (A) the aggregate amount actually so paid by the
Overpaying Persons over (B) the aggregate amount the Overpaying Persons would
have paid if Chemical Bank had exercised its rights on a pro rata basis (the
"Contribution Amount").
(b) Each of the Underpaying Persons shall be severally liable to the
Overpaying Persons for the payment of a portion of the Contribution Amount equal
to the product of (i) the Contribution Amount times (ii) a fraction, the
numerator of which is equal to the excess of (A) the amount such Underpaying
Person would have paid to Chemical Bank if Chemical Bank had exercised its
rights on a pro rata basis over (B) the amount such Underpaying Person actually
paid to Chemical Bank, and the denominator of which is equal to the Contribution
Amount.
(c) Each of the Overpaying Persons shall be entitled to a portion of the
Contribution Amount equal to the product of (i) the Contribution Amount times
(ii) a fraction, the numerator of which is equal to the excess of (A) the amount
such Overpaying Person actually paid to Chemical Bank over (B) the amount
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such Overpaying Person would have paid to Chemical Bank if Chemical Bank had
exercised its rights on a pro rata basis, and the denominator of which is equal
to the Contribution Amount.
(d) In the event that the Underpaying Persons shall make an aggregate
contribution that is less than the Contribution Amount, each Overpaying Person
shall be entitled to a portion of the aggregate contribution actually paid that
is determined in accordance with Section 3.6(c) above.
(e) If (i) Loral or Lockheed Xxxxxx, as the case may be, is an Overpaying
Person, (ii) Loral SpaceCom has made an indemnity payment to such Overpaying
Person pursuant to Section 2.5 of the Distribution Agreement, and (iii) such
Overpaying Person shall receive a payment from any Underpaying Person pursuant
to this Section 3.6, then such Overpaying Person, promptly upon receipt of any
such payment from an Underpaying Person, shall reimburse to Loral SpaceCom an
amount equal to (A) the amount so received times (B) Loral SpaceCom's percentage
liability under such indemnity.
Section 3.7. Waiver of Certain Subrogation Rights. The parties hereto agree
that notwithstanding any payment or payments made by a Partner Guarantor that is
organized under the laws of a state of the United States (a "U.S. Partner
Guarantor") pursuant to the Partner Cash Collateral Agreement or upon a draw by
Chemical Bank of such U.S. Partner Guarantor's Letter of Credit, the U.S.
Partner Guarantor shall not be entitled (x) to be subrogated to any of the
rights of Chemical Bank or the Banks against Loral General Partner, Inc. or any
successor general partner of Loral/QUALCOMM Partnership, L.P. (the "Ultimate
General Partner"), or (y) by reason of a right of subrogation, to any rights
against any collateral security held by Chemical Bank or any Bank for the
payment of obligations on behalf of the Ultimate General Partner. The parties
hereto further agree that the U.S. Partner Guarantor shall not, by right of
subrogation, seek any reimbursement from the Ultimate General Partner in respect
of payments made by the U.S. Partner Guarantor in connection with the Partner
Cash Collateral Agreement or the amounts realized by Chemical Bank or any Bank
in connection therewith.
Section 3.8. Rights Not Exclusive. The rights of Loral and Loral SpaceCom
set forth in this Article III with respect to a defaulting Partner Guarantor
shall not be deemed to be exclusive and nothing herein shall prevent Loral or
Loral SpaceCom from pursuing all available legal or equitable remedies against a
defaulting Partner Guarantor.
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Article IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties. Each party hereto hereby
represents and warrants to the other parties that (i) it has full corporate
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder; (ii) the execution and delivery of this Agreement and the
performance of its obligations hereunder does not conflict with or constitute a
default under, or violate, its certificate of incorporation, bylaws or other
similar organizational documents, any agreements or instruments to which such
party is a party or by which such party is bound or to which any of the property
or assets of such party is subject, or any law, statute, regulation, judgment or
order binding on such party or any of its properties or assets; (iii) except as
described in the Fee Agreement with respect to GTL, the execution and delivery
of this Agreement and the performance of its obligations hereunder does not and
will not require any approval of the stockholders or any authorization of the
board of directors other than such authorization as has already been obtained
and no action by, consent or approval of, or filing with, any governmental
authority or other Person is required for the execution, delivery and
performance of this Agreement other than such consents or approval which shall
have already been obtained; and (iv) this Agreement has been duly executed and
delivered by an authorized representative of such party and constitutes a valid
and binding obligation of such party.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Notices. All communications to any party hereunder shall be in
writing and shall be delivered in person or sent by facsimile, by registered or
certified mail (postage prepaid, return receipt requested) or by reputable
overnight courier to the respective parties at the following addresses or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 5.1 (and shall be deemed to have been given, dated
and received when so delivered personally or by courier or sent by facsimile, or
if mailed, 48 hours after the time of mailing):
If to Loral:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
Attention: General Counsel
and after the Distribution, with a copy to:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
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If to Loral SpaceCom:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000)000-0000
Attention: Xxxxxxx X. Xxxxxxx
If to Globalstar:
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: President
If to GTL:
00 Xxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Xxxxxxxxx: President
If to the Partner Guarantors, at the addresses set
forth on Annex A hereto:
Section 5.2. Entire Agreement; Amendment. Once this Agreement has been
executed by Globalstar, GTL, Loral, Loral SpaceCom and Lockheed Xxxxxx, a
Partner Guarantor shall become bound by the terms of this Agreement immediately
upon its execution of this Agreement (or in the case of an Additional Partner
Guarantor, upon the execution of the Accession Agreement) independently of the
signature of any other Partner Guarantor. This Agreement and the exhibits
hereto, the Fee Agreement, the Fee Warrants, the Credit Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof and
additionally, in the case of Loral and Loral SpaceCom, the Distribution
Agreement and the Lockheed Xxxxxx Guarantee, and supersede all prior oral and
written agreements and all prior or contemporaneous oral negotiations,
commitments and understandings among such parties. This Agreement may be
amended, modified or canceled, and the terms and conditions hereof may be
waived, only by a written instrument signed by each of the parties hereto.
Section 5.3. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 5.4. Further Assurances. Each of the parties hereto hereby agrees
to execute and deliver all such other and additional instruments and documents
and to do such other acts and things as may be necessary to more fully
effectuate this Agreement.
Section 5.5. Variations of Pronouns. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the Person may require.
Section 5.6. Non-Waiver. No delay on the part of any party in exercising
any right hereunder shall operate as a waiver thereof, nor shall any waiver,
express or implied, by any party of any right hereunder or of any failure to
perform or breach hereof by any other party constitute or be deemed a waiver
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of any other right hereunder or of any other failure to perform or breach hereof
by the same or any other party, whether of a similar or dissimilar nature
thereof.
Section 5.7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction. The parties agree
to use their reasonable efforts to substitute one or more valid, legal and
enforceable provisions which, insofar as practicable, implement the purposes and
intent hereof.
Section 5.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, including
without limitation Section 5-1401 of the General Obligations Law, but otherwise
without giving effect to conflict of laws doctrine.
Section 5.9. Headings. The descriptive headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section 5.10. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. A Partner Guarantor may assign its
rights and obligations under this Agreement to an Affiliate upon the prior
written consent of Chemical Bank as agent under the Credit Agreement and
provided further that a Loral subsidiary may assign its rights and obligations
hereunder to Loral SpaceCom or a subsidiary of Loral SpaceCom in connection with
the Distribution.
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IN WITNESS WHEREOF, the parties hereto have caused this Partner
Intercreditor Agreement to be duly executed as of the day and year first above
written.
GLOBALSTAR, L.P.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Treasurer
GLOBALSTAR TELECOMMUNICATIONS LIMITED
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Treasurer
LORAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Treasurer
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President and Treasurer
QUALCOMM LIMITED PARTNER, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title:
SPACE SYSTEMS/LORAL, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
[Remainder of this page intentionally left blank]
DASA GLOBALSTAR LIMITED PARTNER, INC.
By: /s/ Xx. Xxxxxx Xxxxxx
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Name: Xx. Xxxxxx Xxxxxx
Title: President
With respect to Sections 3.5 and 3.6(e) only,
LOCKHEED XXXXXX CORPORATION
By:
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Name:
Title:
SCHEDULE 1
PARTNER GUARANTOR STATED AMOUNT
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DASA Globalstar Limited Partner, Inc. $10,393,157
Qualcomm Limited Partner, Inc. $22,514,479
Space Systems/Loral, Inc. $11,964,216
